Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
NORTH AMERICAN ENERGY PARTNERS INC.
AND
THE GUARANTORS NAMED HEREIN
AS ISSUERS
AND
BNP PARIBAS SECURITIES CORP.
AND
RBC DOMINION SECURITIES CORPORATION
AS INITIAL PURCHASERS
DATED AS OF NOVEMBER 26, 2003
Registration Rights Agreement
This Registration Rights Agreement (this "Agreement") is made and
entered into as of November 26, 2003, by and among North American Energy
Partners Inc., a Canadian federal corporation (the "Company"), the Guarantors
listed on Schedule I hereto (the "Guarantors" and, together with the Company,
the "Issuers") and the Initial Purchasers set forth on Schedule II to the
Purchase Agreement (as defined below) (each an "Initial Purchaser" and,
collectively, the "Initial Purchasers"), each of whom has agreed to purchase the
Issuers' 8 3/4% Senior Notes due 2011 (the "Initial Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
November 21, 2003 (the "Purchase Agreement"), by and among the Issuers and the
Initial Purchasers (i) for the benefit of the Initial Purchasers and (ii) for
the benefit of the holders from time to time of the Initial Notes (including you
and each other Initial Purchaser named in the Purchase Agreement. In order to
induce the Initial Purchasers to purchase the Initial Notes, the Issuers 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 Initial Purchasers set forth in Section 3(a) of 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(c) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of all of the following
(i) the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Notes 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 Issuers to the Registrar under the
Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Notes that were tendered by Holders
thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 8 3/4% Senior Notes due 2011, of the same series
under the Indenture as the Initial Notes, to be issued to Holders in
exchange for Transfer Restricted Notes pursuant to this Agreement.
Exchange Offer: The registration by the Issuers under the Securities
Act of the Exchange Notes pursuant to a Registration Statement pursuant to
which the Issuers offer the Holders of all outstanding Transfer Restricted
Notes the opportunity to exchange all such outstanding Transfer Restricted
Notes held by such Holders for Exchange Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer Restricted
Notes tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Guarantor: As defined in the preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of November 26, 2003, among the
Issuers and Wells Fargo Bank, N.A., as trustee (the "Trustee"), pursuant to
which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Notes: The 8 3/4% Senior Notes due 2011, of the same series
under the Indenture as the Exchange Notes, for so long as such securities
constitute Transfer Restricted Notes.
Initial Placement: The issuance and sale by the Issuers of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
Liquidated Damages: As defined in Section 5 hereof.
NASD: The National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Person: An individual, partnership, corporation, 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,
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including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Notes 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 Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Transfer Restricted Note: Each Note, until the earliest to occur of
(a) the date on which such Note 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 Note has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Note 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), (d) the date on which such Note is eligible to be sold without
volume or manner of sale restrictions pursuant to paragraph (k) of Rule 144
(or any similar provision then in effect), and (e) the date on which such
Note ceases to be outstanding.
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 of the Company are sold to an underwriter for reoffering
to the public.
Section 2. Securities Subject To This Agreement
(a) Transfer Restricted Notes. The notes entitled to the benefits of
this Agreement are the Transfer Restricted Notes.
(b) Holders of Transfer Restricted Notes. A Person is deemed to be a
holder of Transfer Restricted Notes (each, a "Holder") whenever such Person owns
Transfer Restricted Notes.
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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 Issuers shall (i) cause to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 90 days after the Closing Date, a single Registration Statement
under the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use their respective commercially reasonable efforts to cause such
Registration Statement to become effective as soon as practicable, but in no
event later than 190 days after the Closing 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 and (B) if applicable, a post-effective amendment to such Registration
Statement pursuant to Rule 430A under the Securities Act, (iv) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (v) upon the
effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Notes and to permit resales of Notes held by Broker-Dealers
as contemplated by Section 3(c) below.
(b) The Issuers shall use their respective commercially reasonable
efforts to (i) keep the Exchange Offer Registration Statement continuously
effective and (ii) 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 Issuers shall cause the Exchange Offer to comply with
all applicable federal and state securities laws and all applicable Canadian
securities laws. No securities other than the Notes shall be included in the
Exchange Offer Registration Statement. The Issuers shall use their respective
commercially reasonable efforts to cause the Exchange Offer to be Consummated
promptly after the Exchange Offer Registration Statement has become effective,
but in no event later than 225 days after the Closing Date. Any Registration
Statement or other document delivered to persons in Canada in connection with
the Exchange Offer that constitutes an "offering memorandum" for the purposes of
applicable Canadian securities laws shall contain all disclosure required by
such laws. The Exchange Notes shall carry the applicable legend specified in
Section 2.5 of Multilateral Instrument 45-102 of the Canadian Securities
Administrators. The Issuers shall file all reports required by applicable
Canadian securities laws in respect of the issuance of Exchange Notes to persons
in Canada.
(c) The Issuers 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 Initial Notes that are Transfer
Restricted Notes and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Notes acquired directly from the Issuers), may exchange such Initial
Notes 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 Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be
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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 Notes 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 Issuers shall use their respective commercially reasonable 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 Notes
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 order to resell
the Exchange Notes or in connection with market-making or other trading
activities.
The Issuers 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 Issuers are not required to file
an Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Issuers determine in good faith after consultation with counsel that
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),
or (ii) any Holder of Transfer Restricted Notes notifies the Company in writing
prior to the 20/th/ 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 Notes 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 Initial Notes acquired
directly from the Issuers or one of their respective affiliates, then, upon such
Holder's request, the Issuers shall:
(x) use their respective commercially reasonable efforts to 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") as promptly as practicable after receipt of notice pursuant to
Section 4(a) (such date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all Transfer Restricted
Notes the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof; and
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(y) use their respective commercially reasonable efforts to cause
such Shelf Registration Statement to be declared effective by the
Commission on or before the 90/th/ day after the Shelf Filing Deadline.
The Issuers shall use their respective commercially reasonable 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 Notes by the
Holders of Transfer Restricted Notes 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 regulations of the Commission as
announced from time to time, for a period ending on the earlier of (i) two years
from the Closing Date or such shorter period that will terminate when all the
Transfer Restricted Notes covered by the Shelf Registration Statement have been
sold in the manner set forth and as contemplated by the Registration Statement
and (ii) the date on which the Notes become eligible for resale without volume
restrictions pursuant to Rule 144 under the Securities Act.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Notes may
include any of its Transfer Restricted Notes in any Shelf Registration Statement
pursuant to this Agreement, or be entitled to any Liquidated Damages, if any,
with respect thereto, unless and until such Holder furnishes to the Company in
writing, within 10 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 of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 225 days after the Closing Date
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective without being
succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure to be effective and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Issuers, jointly and severally, hereby agree to pay
to each Holder of the Transfer Restricted Notes affected thereby Liquidated
Damages in an amount equal to one quarter of one percent (0.25%) per annum on
principal amounts of the Transfer Restricted Notes held by such Holder during
the 90-day period immediately following the occurrence of any Registration
Default and shall increase by an additional one quarter of one percent (0.25%)
per annum on the principal amounts of such Transfer Restricted Notes at the end
of each subsequent 90-day period, but in no event shall such increase exceed
2.00% per annum (any such interest assessed upon the occurrence of Registration
Default is referred to as "Liquidated Damages"); provided, however, that (i) the
circumstances under which the Issuers may be required to pay
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Liquidated Damages are not cumulative and (ii) Liquidated Damages on the
Transfer Restricted Notes shall cease to accrue upon the earlier of (a) when all
Registration Defaults have been cured or (b) upon the second anniversary of the
Closing Date (or if Rule 144(k) is amended to provide for a shorter restrictive
period, such shorter period).
All accrued Liquidated Damages shall be payable, in the manner
provided for the payment of interest in the Indenture and the Notes, on each
applicable Interest Payment Date (as defined in the Indenture).
Section 6. Registration Procedures
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuers shall comply with all of the provisions of Section
6(c) below, shall use their respective commercially reasonable efforts to effect
such exchange to permit the sale of Transfer Restricted Notes being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Notes shall furnish, upon the request of the Issuers, prior to the
Consummation thereof, a written representation to the Issuers (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 Issuers, (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 Notes to be issued in the Exchange Offer
and (C) it is acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Transfer Restricted Notes shall
otherwise cooperate in the Issuers' 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 Notes obtained by such Holder in exchange for
Initial Notes acquired by such Holder directly from the Issuers.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers shall comply with all the provisions of
Section 6(c) below and shall use their respective commercially reasonable
efforts to effect such registration to permit the sale of the Transfer
Restricted Notes being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Issuers shall as expeditiously as
possible prepare
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and file with the Commission 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 Notes 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 Notes (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Transfer
Restricted Notes by Broker-Dealers), the Issuers shall:
(i) use their respective commercially reasonable efforts to keep
such Registration Statement continuously effective and provide all
requisite financial statements (including, if required by the Securities
Act or any regulations thereunder, financial statements of the Guarantors)
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 Notes during the period required by this
Agreement, the Issuers 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
their respective commercially reasonable 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 Notes 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
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qualification of the Transfer Restricted Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, and (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 qualification of the Transfer
Restricted Notes under state securities or Blue Sky laws, the Issuers shall
use their respective commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial 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 Issuers 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 an Initial Purchaser of Transfer
Restricted Notes 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 an Initial 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 Initial Purchasers, each selling
Holder named in any Registration Statement, and to the underwriter(s), if
any, make the Issuers' representatives 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
Initial Purchasers, any managing underwriter participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such Initial Purchasers or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Issuers, and cause the officers, directors
and employees of the Issuers, to supply all information reasonably
requested by any such Holder,
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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 of Distribution" of the Transfer
Restricted Notes, information with respect to the principal amount of
Transfer Restricted Notes being sold to such underwriter(s), the purchase
price being paid therefor and any other terms of the offering of the
Transfer Restricted Notes 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) if not already rated by an appropriate rating agency, cause
the Transfer Restricted Notes 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 Notes 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 Issuers 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 Notes covered by the
Prospectus or any amendment or supplement thereto;
(xi) enter into such customary agreements (including an
underwriting agreement), and make such representations and warranties, and
take all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Notes pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by any Initial Purchaser or by any Holder of
Transfer Restricted Notes or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this
Agreement; and in connection with any Underwritten Registration pursuant to
a Shelf Registration Statement, the Issuers shall:
(1) furnish to each Initial Purchaser, each selling Holder and
each underwriter, if any, in such substance and scope as they may
request and as
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are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of the
Shelf Registration Statement:
(A) a certificate, dated the date of effectiveness of the
Shelf Registration Statement signed by the Chief Financial
Officer of the Company, confirming, as of the date thereof, the
matters set forth in Section 7(i) of the Purchase Agreement, and
such other matters as such parties may reasonably request;
(B) an opinion, dated the date of effectiveness of the
Shelf Registration Statement of counsel for the Issuers, covering
the matters set forth in Section 7(e) 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 officers and other
representatives of the Issuers, representatives of the
independent public accountants for the Issuers, the Initial
Purchasers' representatives and the Initial Purchasers' counsel
in connection with the preparation of such Registration Statement
and the related Prospectus and has 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; and that
such counsel advises that, on the basis of the foregoing, 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 financial data 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
effectiveness of the Shelf Registration Statement from the
Issuers' 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
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set forth in the comfort letters delivered pursuant to Section
7(g) of the Purchase Agreement, without exception;
(2) if requested, 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 Issuers
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Issuers
contemplated in this clause (xi) cease to be true and correct, the Company shall
so advise the Initial 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 Notes,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Notes under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Notes covered
by the Shelf Registration Statement; provided, however, that no Issuer
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 in any jurisdiction where it is
not then so subject;
(xiii) shall issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes pursuant to the
Exchange Offer, having an aggregate principal amount equal to the aggregate
principal amount of Initial Notes surrendered to the Issuers by such Holder
in exchange therefor or being sold by such Holder; such Exchange Notes to
be registered in the name of such Holder or in the name of the purchaser(s)
of such Notes, as the case may be; in return, the Initial Notes held by
such Holder shall be surrendered to the Issuers 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 Notes to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Notes to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least five business days prior to
any sale of Transfer Restricted Notes made by such underwriter(s);
(xv) use their respective commercially reasonable efforts to obtain
the consent or approval of each governmental agency or authority that may
be required to
12
effect the registration contemplated herein of the Transfer Restricted
Notes covered by the Registration Statement to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Notes, subject to the proviso contained in clause
(xii) above;
(xvi) 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 Notes, 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;
(xvii) provide a CUSIP number for all Exchange Notes not later than
the effective date of the Registration Statement and provide the Trustee
under the Indenture with printed certificates for the Exchange Notes which
are in a form eligible for deposit with the Depositary Trust Company;
(xviii) cooperate with any underwriter 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
(xix) otherwise use their respective commercially reasonable 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 earning 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 Notes 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 Issuers' first fiscal quarter commencing after the effective date of
the Registration Statement;
(xx) 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 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 their respective commercially reasonable 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;
(xxi) cause all Transfer Restricted Notes covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of Initial Notes or
the managing underwriter(s), if any;
13
(xxii) 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; and
(xxiii) use their respective commercially reasonable efforts to take
all other steps necessary or advisable to effect the registration of the
Registrable Securities covered by a Registration Statement contemplated
hereby.
Each Holder agrees by acquisition of a Transfer Restricted Note that,
upon receipt of any notice from the Company 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 Notes 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 Company 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 Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted Notes
that was current at the time of receipt of such notice. In the event the Company
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.
Section 7. Registration Expenses
All expenses incident to the Issuers' performance of or compliance
with this Agreement will be borne by the Issuers, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
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 Notes
to be issued in the Exchange Offer and printing of Prospectuses); (iv) messenger
and delivery services and telephone expenses of the Issuers and all fees and
disbursements of counsel for the Issuers; (v) all application and filing fees in
connection with listing the Exchange Notes on a national securities exchange or
automated quotation system pursuant to the requirements thereof; (vi) all fees
and disbursements of independent certified public accountants of the Issuers
(including the expenses of any special audit and comfort letters required by or
incident to such performance); and (vii) all fees and expenses relating to the
qualification of the Indenture under the applicable securities laws.
The Issuers will, in any event, bear their respective internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or
14
accounting duties), the expenses of any annual audit and the fees and expenses
of any Person, including special experts, retained by the Issuers.
Section 8. Indemnification
(a) The Issuers 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 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. This indemnity agreement shall be in addition
to any liability which the Issuers may otherwise have.
(b) Each Holder of Transfer Restricted Notes agrees, severally and
not jointly, to indemnify and hold harmless the Issuers and their respective
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) the Issuers, and the respective offices, directors,
partners, employees, representatives and agents of each such person, to the same
extent as the foregoing indemnity from the Issuers 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 the Issuers or their respective directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder
of Transfer Restricted Notes, such Holder shall have the rights and duties given
the Issuers and the Issuers or their respective 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 Notes giving rise to such indemnification
obligation.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
15
however, that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under this Section 8 except to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and;
provided further that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have to an indemnified party otherwise
than under this Section 8, except to the extent that any such failure referenced
in this sentence results in the forfeiture by the indemnifying party of
substantial rights and defenses. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Indemnified
Holders shall have the right to employ counsel to represent jointly the
Indemnified Holders and those Indemnified Holders and their respective
directors, officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Indemnified Holders against the Issuers under this Section 8 if, in the
reasonable judgment of the Indemnified Holders, it is advisable for the
Indemnified Holders and those directors, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Issuers. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(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 Issuers, on the one hand, and the Holders, on
the other hand, from the Initial Placement (which in the case of the Issuers
shall be deemed to be equal to the total net proceeds from the Initial Placement
as set forth on the cover page of the Offering Memorandum, dated November 21,
2003), or if such allocation is not permitted by applicable law, the relative
fault of the Issuers, on the one hand, and of the Indemnified Holder, on the
other hand, in connection with the statements or omissions
16
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of the
Issuers, 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 the Issuers 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 Issuers and each Holder of Transfer Restricted Notes 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 total discount
received by such Holder with respect to the Initial Notes 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 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(d) are several in
proportion to the respective principal amount of Initial Notes held by each of
the Holders hereunder and not joint.
Section 9. Rule 144A
Unless any Issuer is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Issuers shall, for so long as any Transfer
Restricted Notes remain outstanding, make available to any Holder or beneficial
owner of Transfer Restricted Notes in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Notes 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 Notes
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 Notes 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,
17
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 Notes covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Notes 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 Notes included in such
offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Issuers.
Section 12. Miscellaneous
(a) Remedies. The Issuers hereby agree that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by any
Issuer of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate; provided, however, that any such right to specific performance shall
be subject to principles of customary commercial reasonableness, as determined
by a court of competent jurisdiction.
(b) No Inconsistent Agreements. No Issuer will, 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. No Issuer has entered into any
agreement granting any registration rights with respect to its securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Issuers' securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Issuers will not take
any action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer, unless such action or change is required by applicable law.
(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 Issuers have obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Notes. 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 Notes being tendered or registered; provided that, with respect to
any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Issuers shall obtain the written consent of each such
Initial
18
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), telex, telecopier, 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 Company or any other Issuer:
North American Energy Partners Inc.
c/o The Sterling Group, L.P.
Eight Greenway Plaza, Suite 702
Houston, Texas 77046
Telephone: (713) 877-8257
Facsimile: (713) 877-1824
Attention: John Hawkins
with a copy to:
Bracewell & Patterson, LLP
711 Louisiana, Suite 2900
Pennzoil Place, South Tower
Houston, Texas 77002
Telephone: (713) 223-2900
Facsimile: (713) 221-1212
Attention: Gary W. Orloff
(iii) if to the Initial Purchasers:
BNP Paribas Securities Corp.
The Equitable Tower
787 Seventh Avenue
New York, NY 10019
Telephone: (212) 841-3020
Facsimile: (212) 841-3561
Attention: Douglas Cook
RBC Dominion Securities Corp.
c/o RBC Capital Markets
Legal Department
One Liberty Plaza
New York New York 10006
Telephone: (212) 858-7119
Facsimile: (212) 858-7468
19
Attention: Roger Blissett
with a copy to:
O'Melveny & Myers LLP
30 Rockefeller Plaza
24/th/ Floor
New York, NY 10112
Telephone: (212) 408-2400
Facsimile: (212) 408-2420
Attention: Cristopher Greer, Esq.
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
answered back, if telexed; 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 Notes; 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 Notes 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, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(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.
20
(k) Entire Agreement. This Agreement together with the Purchase
Agreement, the Notes, and the Indenture 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 Issuers with respect to
the Transfer Restricted Notes. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
NORTH AMERICAN ENERGY PARTNERS INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN CONSTRUCTION GROUP INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN CAISSON LTD.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN CONSTRUCTION LTD.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN ENGINEERING INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
S-1
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
NORTH AMERICAN ENTERPRISES LTD.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN INDUSTRIES INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN MAINTENANCE LTD.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN MINING INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN PIPELINE INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
S-2
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
NORTH AMERICAN ROAD INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN SERVICES INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN SITE DEVELOPMENT LTD.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NORTH AMERICAN SITE SERVICES INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
GRIFFITHS PILE DRIVING INC.
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
NACG FINANCE, LLC
By: /s/ John D. Hawkins
------------------------------------
Name: John D. Hawkins
Title: Vice President
S-3
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
BNP PARIBAS SECURITIES CORP.
By:/s/ Douglas G. Cook
-------------------------------------
Name: Douglas G. Cook
Title: Managing Director
RBC DOMINION SECURITIES CORPORATION
By:/s/ Nicholas Daifotis
-------------------------------------
Name: Nicholas Daifotis
Title: Managing Director
S-4
Schedule I
----------
NACG Finance LLC
North American Construction Group Inc.
North American Caisson Ltd.
North American Construction Ltd.
North American Engineering Ltd.
North American Enterprises Ltd.
North American Industries Inc.
North American Maintenance Ltd.
North American Mining Inc.
North American Pipeline Inc.
North American Road Inc.
North American Services Inc.
North American Site Development Ltd.
North American Site Services Inc.
Griffiths Pile Driving Inc.