SCHEDULE 13D
Amendment No. 8
Key Energy Group, Inc.
common stock
Cusip # 492914106
Cusip # 492914106
Item 1: Reporting Person - FMR Corp. - (Tax ID: 04-2507163)
Item 4: PF
Item 6: Commonwealth of Massachusetts
Item 7: 2,036,036
Item 8: None
Item 9: 2,539,046
Item 10: None
Item 11: 2,539,046
Item 13: 20.22%
Item 14: HC
PREAMBLE
The filing of this Schedule 13D is not, and should not be
deemed to be, an admission that such Schedule 13D is required to
be filed. See the discussion under Item 2. This Schedule 13D is
being filed by FMR Corp., a Massachusetts corporation ("FMR").
FMR has previously filed a Schedule 13G with respect to Shares
(as defined below) and is filing this Schedule 13D as a result of
the acquisition of Shares described in Item 3 hereof.
Item 1. Security and Issuer.
This statement relates to shares of the common stock, $0.10
par value (the "Shares") of Key Energy Group, Inc., a Maryland
corporation (the "Company"). The principal executive offices of
the Company are located at 257 Livingston Avenue, New Brunswick,
NJ 08901-3054.
Item 2. Identity and Background.
This statement is being filed by FMR. FMR is a holding
company one of whose principal assets is the capital stock of a
wholly-owned subsidiary, Fidelity Management & Research Company
("Fidelity"), which is also a Massachusetts corporation.
Fidelity is an investment advisor which is registered under
Section 203 of the Investment Advisors Act of 1940 and which
provides investment advisory services to more than 30 investment
companies which are registered under Section 8 of the Investment
Company Act of 1940 and serves as investment advisor to certain
other funds which are generally offered to limited groups of
investors (the "Fidelity Funds"). Fidelity Management Trust
Company ("FMTC"), a wholly-owned subsidiary of FMR Corp. and a
bank as defined in Section 3(a)(6) of the Securities Exchange Act
of 1934, serves as trustee or managing agent for various private
investment accounts, primarily employee benefit plans and serves
as investment adviser to certain other funds which are generally
offered to limited groups of investors (the "Accounts"). Various
directly or indirectly held subsidiaries of FMR are also engaged
in investment management, venture capital asset management,
securities brokerage, transfer and shareholder servicing and real
estate development. The principal offices of FMR, Fidelity, and
FMTC are located at 82 Devonshire Street, Boston, Massachusetts
02109.
Members of the Edward C. Johnson 3d family are the
predominant owners of Class B shares of common stock of FMR
representing approximately 49% of the voting power of FMR. Mr.
Johnson 3d owns 12.0% and Abigail Johnson owns 24.5% of the
aggregate outstanding voting stock of FMR. Mr. Johnson 3d is the
Chairman of FMR. The Johnson family group and all other Class B
shareholders have entered into a shareholders' voting agreement
under which all Class B shares will be voted in accordance with
the majority vote of Class B shares. Accordingly, through their
ownership of voting common stock and the execution of the
shareholders' voting agreement, members of the Johnson family may
be deemed, under the Investment Company Act of 1940, to form a
controlling group with respect to FMR. The business address and
principal occupation of Mr. Johnson 3d is set forth in Schedule A
hereto.
The Shares to which this statement relates are owned
directly by two of the Fidelity Funds, and one of the Accounts.
Belmont Capital Partners II, L.P. ("Belmont II") a Delaware
limited partnership that is one of the Accounts, directly owns
1,684,600 Shares and 351,436 warrants to purchase Shares.
Assuming exercise of all the warrants held by Belmont II, Belmont
II would hold 2,036,036 Shares representing approximately 16.21%
of the issued and outstanding Shares. Belmont II is managed by a
corporate general partner which is a wholly-owned subsidiary of
FMR.
The name, residence or business address, principal
occupation or employment and citizenship of each of the executive
officers and directors of FMR are set forth in Schedule A hereto.
Within the past five years, none of the persons named in
this Item 2 or listed on Schedule A has been convicted in any
criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to any civil proceeding and as
a result thereof was or is subject to any judgment, decree or
final order enjoining future violations of, or prohibiting or
mandating activities subject to federal or state securities laws
or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Fidelity Funds which own or owned Shares purchased in
the aggregate 38,000 Shares for cash in the amount of
approximately $234,377, including brokerage commissions. The
Fidelity Funds used their own assets in making such purchase and
no part of the purchase price is represented by borrowed funds.
In addition, certain of the Fidelity Funds previously held shares
of common stock ("WellTech Shares") of WellTech, Inc., a Delaware
corporation ("WellTech"), and such Fidelity Funds received in the
aggregate 446,395 Shares and warrants to purchase 67,910 Shares
in exchange for their WellTech Shares pursuant to a merger of
WellTech with and into the Company (the "Merger"). The attached
Schedule B sets forth Shares purchased and/or sold since July 22,
1997.
The Accounts which own Shares received 2,640,100 Shares and
warrants to purchase 401,641 Shares pursuant to the Merger in
exchange for WellTech shares which the Accounts held. The
Accounts used their own assets in making such purchase and no
part of the purchase price is represented by borrowed funds. The
attached Schedule B sets forth Shares purchased and/or sold since
July 22, 1997.
Item 4. Purpose of Transaction.
The purpose of Fidelity and FMTC in having the Fidelity
Funds and the Accounts purchase Shares is to acquire an equity
interest in the Company in pursuit of specified investment
objectives established by the Board of Trustees of the Fidelity
Funds and by the investors in the Accounts.
Fidelity and FMTC, respectively, may continue to have the
Fidelity Funds and the Accounts purchase Shares subject to a
number of factors, including, among others, the availability of
Shares for sale at what they consider to be reasonable prices and
other investment opportunities that may be available to the
Fidelity Funds and Accounts.
Fidelity and FMTC, respectively, intend to review
continuously the equity position of the Fidelity Funds and
Accounts in the Company. Depending upon future evaluations of
the business prospects of the Company and upon other
developments, including, but not limited to, general economic and
business conditions and money market and stock market conditions,
Fidelity may determine to cease making additional purchases of
Shares or to increase or decrease the equity interest in the
Company by acquiring additional Shares, or by disposing of all or
a portion of the Shares.
Neither Fidelity nor FMTC has any present plan or proposal
which relates to or would result in (i) an extraordinary
corporate transaction, such as a merger, reorganization,
liquidation, or sale of transfer of a material amount of assets
involving the Company or any of its subsidiaries, (ii) any change
in the Company's present Board of Directors or management, (iii)
any material changes in the Company's present capitalization or
dividend policy or any other material change in the Company's
business or corporate structure, (iv) any change in the Company's
charter or by-laws, or (v) the Company's common stock becoming
eligible for termination of its registration pursuant to Section
12(g)(4) of the 1934 Act.
Item 5. Interest in Securities of Issuer.
FMR, Fidelity, and FMTC, own 2,119,700 Shares and Warrants
to purchase 419,346 Shares.
(a) FMR beneficially owns, through Fidelity, as investment
advisor to the Fidelity Funds, 503,010 Shares, or approximately
4.01% of the outstanding Shares of the Company, and through FMTC,
the managing agent for the Accounts, 2,036,036 Shares, or
approximately 16.22% of the outstanding Shares of the Company;
such reported ownership assumes exercise by the Fidelity Funds
and Accounts of their warrants to purchase 419,346 Shares. Each
warrant entitles the holder thereof to purchase one Share at an
exercise price of $6.75 subject to certain adjustments for
dilution events. Neither FMR, Fidelity, FMTC, nor any of its
affiliates nor, to the best knowledge of FMR, any of the persons
named in Schedule A hereto, beneficially owns any other Shares.
The combined holdings of FMR, Fidelity, and FMTC, are 2,539,046
Shares or warrants to purchase Shares, or approximately 20.22% of
the outstanding Shares or warrants to purchase Shares of the
Company.
(b) FMR, through its control of Fidelity, investment
advisor to the Fidelity Funds, and the Fidelity Funds each has
sole power to dispose of the Shares beneficially owned by it.
Neither FMR nor Mr. Johnson has the sole power to vote or direct
the voting of the 503,010 Shares owned directly by the Fidelity
Funds, which power resides with the Funds' Boards of Trustees.
Fidelity carries out the voting of the Shares under written
guidelines established by the Funds' Board of Trustees. FMR,
through its control of FMTC, investment manager to the Accounts,
and the Accounts each has sole dispositive power over 2,036,036
Shares and sole power to vote or to direct the voting of
2,036,036 Shares.
(c) Except as described in Item 3 above and as set forth in
Schedule B, neither FMR, or any of its affiliates, nor, to the
best knowledge of FMR, any of the persons named in Schedule A
hereto has effected any transaction in Shares during the past
sixty (60) days.
Item 6. Contract, Arrangements, Understandings or Relationships
With Respect to Securities of the Issuer.
DDJ Capital Management, LLC or an affiliate of such company
("DDJ"), provides investment advisory consulting services for
FMTC's use in connection with FMTC's investment management of one
Account which own Shares and two Accounts which own warrants to
purchase Shares. DDJ is not a direct or indirect subsidiary or
affiliate of FMR Corp. or FMTC; DDJ has no shared or sole voting
or dispositive power or any other investment discretion with
respect to such securities or any other securities owned by
Accounts managed by FMTC.
In connection with the Merger, certain of the Fidelity Funds
and Accounts, the Company and certain other persons entered into
a Registration Rights Agreement dated as of March 28, 1996
pursuant to which the Company has registered under the Securities
Act of 1933, as amended, the Shares, warrants to purchase Shares
and the Shares issuable upon exercise of the warrants, in each
case held by such Fidelity Funds and Accounts and such other
persons.
Other than the agreement(s) described in Item 3 above and
except as may otherwise be described herein, neither FMR nor any
of its affiliates nor, to the best knowledge of FMR, any of the
persons named in Schedule A hereto has any joint venture,
finder's fee, or other contract or arrangement with any person
with respect to any securities of the Company.
The Funds and Accounts may from time to time own debt
securities issued by the Company or its direct or indirect
subsidiaries, and may from time to time purchase and/or sell such
debt securitites.
Item 7. Material to be Filed as Exhibits.
Registration Rights Agreement
This statement speaks as of its date, and no inference
should be drawn that no change has occurred in the facts set
forth herein after the date hereof.
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
FMR Corp.
DATE: August 5, 1997 By: /s/Arthur
Loring
Arthur Loring
Vice President-Legal
SCHEDULE A
The name and present principal occupation or employment of
each executive officer and director of FMR Corp. are set forth
below. The business address of each person is 82 Devonshire
Street, Boston, Massachusetts 02109, and the address of the
corporation or organization in which such employment is conducted
is the same as his business address. All of the persons listed
below are U.S. citizens.
POSITION WITH
PRINCIPAL
NAME FMR CORP. OCCUPATION
Edward C. Johnson 3d President,
Chairman of the
Director, CEO Board and CEO, FMR
Corp.
Chairman &
Mng. Director
J. Gary Burkhead Director and Vice Chairman President,
Fidelity Investments
Institutional
Services
Company, Inc.
James C. Curvey Director, Vice Chairman, Chief Operating
Officer, FMR
Chief Operating Officer
William L. Byrnes Director & Mng. Vice Chairman, FIL
Director
Abigail P. Johnson Director Associate Director
and Senior Vice President - Fidelity
Management & Research Company
George A. Vanderheiden Director Senior
Vice President,
Fidelity Management
& Research Company
David C. Weinstein Sr. Vice President Sr. Vice President
Administration Administration, FMR
Corp.
Mark A. Peterson Executive Vice President President - Fidelity
Investments Technology &
Processing Group
Gerald M. Lieberman Sr. Vice Pres. - Sr. Vice Pres. -
Chief Financial Chief Financial
Officer Officer, FMR Corp.
SCHEDULE B
Key Energy Group, Inc.
One Fidelity Fund sold Shares since July 22, 1997 at the dates
and at the prices set forth below. The transactions were made
for cash in open market transactions or with other investment
companies with the same or an affiliated investment advisor.
DATE SHARES PRICE
07/22/97 11,500 $21.39
07/23/97 3,600 21.50
07/24/97 4,200 20.00
07/25/97 5,300 20.66
07/28/97 1,300 21.08
07/29/97 5,000 21.15
07/30/97 6,800 21.05
07/31/97 10,100 21.10
08/01/97 20,500 21.50
SCHEDULE B
Key Energy Group, Inc.
One Account sold Shares since July 22, 1997 at the dates and at
the prices set forth below. The transactions were made for cash
in open market transactions or with other investment companies
with the same or an affiliated investment advisor.
DATE SHARES PRICE
07/22/97 44,600 $21.39
07/23/97 13,800 21.50
07/24/97 15,800 20.00
07/25/97 20,400 20.66
07/28/97 5,000 21.08
07/29/97 19,600 21.15
07/30/97 26,400 21.05
07/31/97 39,100 21.10
08/01/97 79,500 21.50
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
March 28, 1996, by and among Key Energy Group, Inc., a Maryland
corporation (the "Company"), and each of the several Holders (as
hereinafter defined) executing a signature page hereto.
This Agreement is contemplated by a certain Agreement and
Plan of Merger dated as of November 18, 1995 (the "Merger
Agreement") by and between the Company and WellTech, Inc., a
Delaware corporation ("WellTech"), as amended.
The parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have
the following meanings:
"Advice" has the meaning set forth in Section 5.
"Affiliate" means, with respect to any specified Person, any
other Person who, directly or indirectly, controls, is controlled
by, or is under common control with such specified Person.
"Business Day" means any day other than a day on which banks
are authorized or required to be closed in the State of New York.
"Closing Date" has the meaning ascribed thereto in the
Merger Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Shares" means 3,697,495 shares of Common Stock of
the Company held by the Holders.
"Common Stock" means the common stock, par value $.10 per
share, of the Company.
"Company" has the meaning set forth in the preamble and
shall include the Company's successors by merger, acquisition,
reorganization or otherwise.
"Controlling Persons" has the meaning set forth in Section
8(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute, and the
rules and regulations of the Commission promulgated thereunder.
"Holder" means each holder of record of Registrable
Securities.
"Holders' Counsel" means Goodwin, Procter & Hoar or any
successor counsel selected by Holders of a majority in interest
of the Registrable Securities.
"Inspectors" has the meaning set forth in Section 4(m).
"Lock-up Request" has the meaning set forth in Section 10.
"NASD" has the meaning set forth in Section 4(q).
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"Piggy-Back Registration" has the meaning set forth in
Section 3(a).
"Prospectus" means the prospectus included in any
Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A promulgated under the Securities Act),
as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of
the offering of any portion of the Registrable Securities covered
by a Shelf Registration Statement, and by all other amendments
and supplements to the prospectus, including post-effective
amendments, and in each case including all material incorporated
by reference or deemed to be incorporated by reference in such
prospectus.
"Records" has the meaning set forth in Section 4(m).
"Registrable Securities" means, collectively, the Common
Shares, the Warrants and the Warrant Shares until such time as
(i) a Registration Statement covering such Registrable Securities
has been declared effective and such Registrable Securities have
been disposed of pursuant to such effective Registration
Statement, (ii) such Registrable Securities are transferred to
any Person other than a Holder pursuant to Rule 144 (or any
similar provision then in force, but not Rule 144A) under the
Securities Act, including a sale pursuant to the provisions of
Rule 144(k), or (iii) such Registrable Securities shall cease to
be outstanding.
"Registration Expenses" has the meaning set forth in Section
7.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities
pursuant to the provisions of this Agreement (including any Shelf
Registration Statement), and all amendments and supplements to
any such registration statement, including post-effective
amendments, in each case including the Prospectus, all exhibits,
and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Rule 144A" has the meaning set forth in Section 9(b).
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor statute, and the
rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" has the meaning set forth in Section
2(a).
"Shelf Registration Statement" has the meaning set forth in
Section 2(a).
"Suspension Notice" has the meaning set forth in Section 5.
"Suspension Period" has the meaning set forth in Section 5.
"Target Effective Period" has the meaning set forth in
Section 2(a).
"Warrants" mean the warrants to purchase up to 469,551
shares of Common Stock held by the Holders.
"Warrant Shares" means the shares of Common Stock issuable
upon the exercise of the Warrants.
Section 2. Shelf Registration.
(a) Filing; Effectiveness. If, as of the Closing Date, one
or more shelf registration statements (the "Shelf Registration
Statement") on the appropriate form for an offering to be made on
a continuous basis pursuant to Rule 415 under the Securities Act
(or such successor rule or similar provision then in effect)
covering all of the Registrable Securities (a "Shelf
Registration") are not effective or the effectiveness thereof has
been suspended, then the Company shall use its reasonable
business efforts to cause such Shelf Registration Statement to be
effective as soon as practicable. Once the Shelf Registration
Statement is effective, the Company shall use its reasonable
business efforts to keep such Shelf Registration Statement
continuously effective for a period (the "Target Effective
Period") ending with the earlier of (x) the sale of all
Registrable Securities and (y) 36 months following the Closing
Date or, if later, the date on which such Shelf Registration
Statement is declared effective. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration
Statement, as required by the registration form used by the
Company for such Shelf Registration Statement or by the
instructions applicable to such registration form or by the
Securities Act or as reasonably requested (which request shall
result in the filing of a supplement or amendment) by any Holder
of Registrable Securities to which such Shelf Registration
Statement relates (but only to the extent that such request by
such Holder relates to information with respect to such Holder),
and the Company agrees to furnish to each Holder, Holders'
Counsel and any managing underwriter copies of any such
supplement or amendment prior to its being used and/or filed with
the Commission. The Holders shall be permitted to withdraw all
or any part of the Registrable Securities from a Shelf
Registration Statement (i) at any time prior to the effective
date of such Shelf Registration Statement and (ii) in the event
that on or after the effective date of such Shelf Registration
Statement the Holders receive a Lock-up Request and such one or
more withdrawing Holders elect to exercise their rights to a
Piggy-Back Registration pursuant to Section 3 hereof.
(b) Liquidated Damages.
(i) If during the Target Effective Period a stop order
is imposed, for any other reason the effectiveness of the Shelf
Registration Statement is suspended or there is a Suspension
Period exceeding the length of time permitted by Section 5 hereof
or not otherwise permitted by Section 5 hereof, then the Company
shall pay liquidated damages to each Holder in an amount equal to
$0.50 per 1,000 Common Shares (or in the case of any Warrant,
$.50 per 1,000 Warrant Shares based on the number of Warrant
Shares issuable upon exercise of such Warrant) per week beginning
on the date of such stop order, the date of such other suspension
of effectiveness or the date on which such Suspension Period
Failed to comply with Section 5 hereof, as the case may be. If
the stop order, other suspension of effectiveness of the Shelf
Registration Statement or excessive or impermissible Suspension
Period shall not have been cured within 90 days after such stop
order was imposed, the effectiveness of such Shelf Registration
Statement was otherwise suspended or the Suspension Period failed
to comply with Section 5 hereof, as the case may be, the weekly
liquidated damages shall increase to $1.00 per 1,000 Common
Shares (or in the case of any Warrant, $1.00 per 1,000 Warrant
Shares based on the number of Warrant Shares issuable upon
exercise of such Warrant). It the stop order, other suspension
of effectiveness of the Shelf Registration Statement or excessive
or impermissible Suspension Period shall not have been cured
within 180 days after such stop order was imposed, the
effectiveness of such Shelf Registration Statement was otherwise
suspended or the Suspension Period failed to comply with
Section 5 hereof, as the case may be, the weekly liquidated
damages shall increase to $1.50 per 1,000 Common Shares (or in
the case of any Warrant, $1.50 per 1,000 Warrant Shares based on
the number of Warrant Shares issuable upon exercise of such
Warrant).
(ii) The liquidated damages to be paid to Holders
pursuant to this Section 2(b) shall begin to accrue on the
date on which the event triggering such liquidated damages
occurs and shall cease to accrue on the day after the
reinstatement of effectiveness of the Shelf Registration
Statement or the day after any excessive or impermissible
Suspension Period ends, as the case may be.
(iii) The Registrable Securities with respect to
which liquidated damages shall accrue and be payable in
accordance with this Section 2(b) shall be those Registrable
Securities held by the Holders which are included or
proposed to be included in the Shelf Registration Statement
and which have not been sold pursuant to the Shelf
Registration Statement or other public sale prior to the
occurrence of the event triggering such liquidated damages.
The Company shall pay the liquidated damages due with
respect to any Registrable Securities at the end of each
week during which such damages accrue. Liquidated damages
shall be paid to the Holders of Registrable Securities
entitled to receive such liquidated damages by wire transfer
in immediately available funds to the accounts designated by
such Holders.
(iv) The parties hereto agree that the liquidated
damages provided for in this Section 2(b) constitute a
reasonable estimate of the damages that will be suffered by
Holders of Registrable Securities by reason of the failure
of the Shelf Registration Statement to remain effective, in
accordance with this Agreement.
(c) Effective Registration. A registration will not be
deemed to have been effected as a Shelf Registration unless the
Shelf Registration Statement with respect thereto has been
declared effective by the Commission and the Company has complied
in all material respects with its obligations under this
Agreement with respect thereto. If a Shelf Registration is
deemed not to have been effected, then the Company shall continue
to be obligated to effect a Shelf Registration pursuant to this
Section 2.
(d) Selection of Underwriter. If the Holders so elect, the
offering of Registrable Securities pursuant to a Shelf
Registration Statement shall be in the form of an underwritten
offering. If they so elect, the Holders participating in such
Shelf Registration Statement shall select one or more nationally
recognized firms of investment bankers to act as the book-running
managing underwriter or underwriters in connection with such
offering; provided that such selection shall be subject to the
consent of the Company, which consent shall not be unreasonably
withheld.
Section 3. Piggy-Back Registration.
(a) Request for Registration. Each time the Company
proposes to file a registration statement under the Securities
Act with respect to an offering by the Company for its own
account or for the account of any of its securityholders of any
class of equity security (other than (i) a registration statement
on Form S-4 or S-8 (or any substitute form that is adopted by the
Commission) or (ii) a registration statement filed in connection
with an exchange offer or offering of securities solely to the
Company's existing securityholders), and the form of registration
statement to be used permits the registration of Registrable
Securities, then the Company shall give written notice of such
proposed filing to the Holders of Registrable Securities as soon
as practicable (but in no event less than 20 days before the
anticipated effective date), and such notice shall offer such
Holders the opportunity to register such Registrable Securities
as each such Holder may request (which request shall specify the
Registrable Securities intended to be disposed of by such Holder
and the intended method of distribution thereof) within 10 days
after the date such notice is received by such Holder from the
Company (a "Piggy-Back Registration"). The Company shall cause
the managing underwriter or underwriters of a proposed
underwritten offering to permit the Registrable Securities
requested to be included in a Piggy-Back Registration to be
included on the same terms and conditions as any similar
securities of the Company or any other securityholder included
therein and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method of
distribution thereof. Any Holder shall have the right to
withdraw its request for inclusion of its Registrable Securities
in any registration statement pursuant to this Section 3 by
giving written notice to the Company of such withdrawal no later
than five days prior to the anticipated effective date. The
Company may withdraw a Piggy-Back Registration at any time prior
to the time it becomes effective, provided that the Company shall
give prompt notice of such withdrawal to the Holders of
Registrable Securities requested to be included in such
Piggy-Back Registration.
(b) Reduction of Offering. If the managing underwriter or
underwriters of an underwritten offering with respect to which
Piggy-Back Registration has been requested as provided in Section
3(a) shall have informed the Company, in writing, that in the
opinion of such underwriter or underwriters the total number of
shares which the Company, Holders of Registrable Securities and
any other Persons participating in such registration intend to
include in such offering is such as to materially and adversely
affect the success of such offering (including without limitation
any material decrease in the proposed public offering price),
then the number of shares to be offered for the account of all
Persons (other than the Company) participating in such
registration shall be reduced or limited (to zero if necessary)
pro rata in proportion to the respective number of shares
requested to be registered by such Persons to the extent
necessary to reduce the total number of shares requested to be
included in such offering to the number of shares, if any,
recommended by such managing underwriter or underwriters.
No registration effected under this Section 3, and no
failure to effect a registration under this Section 3 shall
relieve the Company of its obligation to effect a Shelf
Registration pursuant to Section 2. No failure to effect a
registration under this Section 3 and to complete the sale of
Registrable Securities in connection therewith shall relieve the
Company of any other obligation under this Agreement, including
without limitation, the Company's obligations under Sections 7
and 8.
Section 4. Registration Procedures.
In connection with the obligations of the Company to effect
or cause the registration of any Registrable Securities pursuant
to the terms and conditions of this Agreement, the Company shall
use its reasonable business efforts to effect the registration
and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as
practicable, and in connection therewith:
(a) The Company shall prepare and file with the
Commission a Registration Statement on the appropriate form
under the Securities Act, which form shall comply as to form
in all materials respects with the requirements of the
applicable form and include all financial statements
required by the Commission to be filed therewith, and use
its reasonable business efforts to cause such Registration
Statement to become effective and remain effective in
accordance with the provisions of this Agreement.
(b) The Company shall promptly prepare and file with
the Commission such amendments and post-effective amendments
to each Registration Statement as may be necessary to keep
such Registration Statement effective for as long as such
registration is required to remain effective pursuant to the
terms hereof; shall 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 shall comply with the provisions of the
Securities Act applicable to it with respect to the
disposition of all Registrable Securities covered by such
Registration Statement during the applicable period in
accordance with the intended methods of disposition by the
Holders set forth in such Registration Statement or
supplement to the Prospectus;
(c) The Company shall promptly furnish to any Holder
and the underwriters, if any, without charge, such number of
conformed copies of each Registration Statement and any
post-effective amendment thereto and such number of copies
of the Prospectus (including each preliminary Prospectus)
and any amendments or supplements thereto, any documents
incorporated by reference therein and such other documents
as such Holder or underwriter may reasonably request in
order to facilitate the public sale or other disposition of
the Registrable Securities being sold by such Holder.
(d) The Company shall, on or prior to the date on
which a Registration Statement is declared effective, (i)
use its reasonable business efforts to register or qualify
the Registrable Securities covered by such Registration
Statement under such other securities or "blue sky" laws of
such states of the United States as any Holder or
underwriter requests; (ii) do any and all other acts and
things which may be necessary or advisable to enable such
Holder to consummate the disposition of such Registrable
Securities owned by such Holder; (iii) use its reasonable
business efforts to keep each such registration or
qualification (or exemption therefrom) effective during the
period which the Registration Statement is required to be
kept effective in accordance with the provisions of this
Agreement; and (iv) do any and all other acts or things
reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities;
provided, however, that the Company shall not be required
(x) to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for
this Section 4(d), (y) to file any general consent to
service of process, or (z) to subject itself to taxation in
any jurisdiction where it would not otherwise be subject to
taxation.
(e) The Company shall cause the Registrable Securities
covered by a Registration Statement to be registered with or
approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations
of the Company to enable the Holders to consummate the
disposition of such Registrable Securities.
(f) The Company shall promptly notify each Holder,
Holders' Counsel and any underwriter in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective
amendment has been filed and, with respect to a Registration
Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or
any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or
for additional information after the Registration Statement
has become effective, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
a Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the issuance by
any state securities commission or other regulatory
authority of any order suspending the qualification or
exemption from qualification of any of the Registrable
Securities under state securities or "blue sky" laws or the
initiation of any proceedings for that purpose, (v) if,
between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to
the offering cease to be true and correct in all material
respects, and (vi) of the happening of any event which makes
any statement made in a Registration Statement or related
Prospectus untrue or which requires the making of any
changes in such Registration Statement or Prospectus so that
they will not contain any untrue statement of a material
fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made,
not misleading. Immediately following expiration of any
Suspension Period, the Company shall prepare and file with
the Commission and furnish a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading.
(g) The Company shall make generally available to the
Holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act no later than 45 days
(90 days in the event it relates to a fiscal year) after the
end of the 12-month period beginning with the first day of
the Company's first fiscal quarter commencing after the
effective date of a Registration Statement, which earnings
statement shall cover said 12-month period, and which
requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on forms
10-Q, 10-K and 8-K under the Exchange Act and otherwise
complies with Rule 158 under the Securities Act.
(h) The Company shall promptly use its reasonable
business efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement,
and if one is issued use its reasonable business efforts to
obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest
possible moment.
(i) The Company shall, if requested by the managing
underwriter or underwriters, if any, Holders' Counsel, or
any Holder promptly incorporate in a Prospectus supplement
or post-effective amendment such information as such
managing underwriter or underwriters reasonably requests, or
Holders' Counsel reasonably requests, to be included
therein, including, without limitation, with respect to the
Registrable Securities being sold by such Holder to such
underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with
respect to any other terms of an underwritten offering of
the Registrable Securities to be sold in such offering, and
promptly make all required filings of such Prospectus
supplement or post-effective amendment.
(j) The Company shall, as promptly as practicable
after filing with the Commission any document which is
incorporated by reference into a Registration Statement (in
the form in which it was incorporated), deliver a copy of
each such document to each of the Holders and to Holders'
Counsel.
(k) The Company shall cooperate with the Holders and
the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of
certificates (which shall not bear any restrictive legends
unless required under applicable law) representing
securities sold under a Registration Statement, and enable
such securities to be in such denominations and registered
in such names as the managing underwriter or underwriters,
if any, or such Holders may reasonably request and keep
available and make available to the Company's transfer agent
prior to the effectiveness of such Registration Statement a
supply of such certificates.
(l) The Company shall enter into such customary
agreements (including, if applicable, an underwriting
agreement in customary form) and take such other actions as
the Holders or the underwriters retained by the Holders
participating in an underwritten public offering, if any,
may reasonably request in order to expedite or facilitate
the disposition of Registrable Securities.
(m) The Company shall promptly make available to each
Holder, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney,
accountant or other agent or representative retained by any
such Holder or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause
the Company's officers, directors and employees to supply
all information reasonably requested by any such Inspector
in connection with such Registration Statement; provided
that, unless the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such
Registration Statement or the release of such Records is
ordered pursuant to a subpoena or other order from a court
of competent jurisdiction, the Company shall not be required
to provide any information under this paragraph (1) if the
Company believes, after consultation with counsel for the
Company and counsel for the Holders, that to do so would
cause the Company to forfeit an attorney-client privilege
that was applicable to such information or (2) if either (i)
the Company has requested and been granted from the
Commission confidential treatment of such information
contained in any filing with the Commission or documents
provided supplementally or otherwise or (ii) the Company
reasonably determines in good faith that such Records are
confidential and so notifies the Inspectors in writing
unless prior to furnishing any such information with respect
to (i) or (ii) such Holder of Registrable Securities
requesting such information agrees to enter into a
confidentiality agreement in customary form and subject to
customary exceptions; and provided, further that each Holder
of Registrable Securities agrees that it will, upon learning
that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow
the Company at its expense, to undertake appropriate action
and to prevent disclosure of the Records deemed
confidential.
(n) In the case of any underwritten public offering,
the Company shall furnish to each Holder and to each
underwriter a signed counterpart, addressed to such Holder
or underwriter, of (i) an opinion or opinions of counsel to
the Company, and (ii) a comfort letter or comfort letters
from the Company's independent public accountants, each in
customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the
case may be, as the managing underwriter therefor reasonably
requests.
(o) The Company shall cause the shares of Common Stock
included in a Registration Statement to be listed on the
American Stock Exchange or such other securities exchange on
which similar securities issued by the Company are then
listed.
(p) The Company shall provide a CUSIP number for all
Registrable Securities covered by a Registration Statement
not later than the effective date of such Registration
Statement.
(q) The Company shall cooperate with each Holder and
each underwriter participating in the disposition of
Registrable Securities and their respective counsel in
connection with any filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD").
(r) The Company shall, during the period when the
Prospectus is required to be delivered under the Securities
Act, promptly file all documents required to be filed with
the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(s) The Company shall appoint a transfer agent and
registrar for all the shares of Common Stock covered by a
Registration Statement not later than the effective date of
such Registration Statement.
(t) In connection with an underwritten offering, the
Company will participate, to the extent reasonably requested
by the managing underwriter for the offering or the Holders,
in customary efforts to sell the securities under the
offering, including without limitation, participating in
"road shows."
Section 5. Suspension Period.
In the case of a Shelf Registration Statement, each Holder,
upon receipt of any notice (a "Suspension Notice") from the
Company of the happening of any event of the kind described in
Section 4(f)(vi) or of any event which, in the Company's
reasonable business judgment, could become such an event, shall
forthwith discontinue disposition of the Registrable Securities
pursuant to the Shelf Registration Statement covering such
Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section
4(f) 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 which
are incorporated by reference in the Prospectus, and, if so
directed by the Company, such Holder will, or will request the
managing underwriter or underwriters, if any, to, 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 Registrable Securities current at the
time of receipt of such notice; provided, however, that (w) the
Company shall not give a Suspension Notice until after the Shelf
Registration Statement has been declared effective, (x) the
Company shall not give more than three Suspension Notices during
any period of twelve consecutive months, (y) in no event shall
the period from the date on which any Holder receives a
Suspension Notice to the date on which any Holder receives either
the Advice or copies of the supplemented or amended Prospectus
contemplated by Section 4(f) (the "Suspension Period") exceed 60
days and (z) in no event shall the aggregate length of all
Suspension Periods during any period of twelve consecutive months
exceed 90 days. In the event that the Company shall give any
Suspension Notice, (i) the Company shall use its reasonable
business efforts and take such actions as are reasonably
necessary to render the Advice and end the Suspension Period as
promptly as practicable and (ii) the time periods for which a
Shelf Registration Statement is required to be kept effective
pursuant to Section 2 hereof shall be extended by the number of
days during the Suspension Period.
Section 6. Holder Information.
If any Registration Statement refers to any Holder by name
or otherwise as the holder of any securities of the Company, then
such Holder shall have the right, to the extent permitted by law,
to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be
construed as a recommendation by such Holder of the investment
quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting
any future financial requirements of the Company, or (ii) in the
event that such reference to such Holder by name or otherwise is
not required by the Securities Act or any similar Federal or
state "blue sky" statute and the rules and regulations thereunder
then in force, the deletion of the reference to such Holder.
Section 7. Registration Expenses.
Any and all expenses incident to the Company's performance
of or compliance with this Agreement, including without
limitation all Commission and securities exchange, NASDAQ or NASD
registration and filing fees, all fees and expenses incurred in
connection with compliance with state securities or "blue sky"
laws (including reasonable fees and disbursements of counsel for
any underwriters in connection with "blue sky" qualifications of
the Registrable Securities), printing expenses, messenger and
delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of the Company's officers
and employees performing legal or accounting duties), all
expenses for word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance
of and compliance with this Agreement, the fees and expenses
incurred in connection with the listing of the Registrable
Securities, the fees and disbursements of counsel for the Company
and of the independent certified public accountants of the
Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public
accountants of a comfort letter or comfort letter requested
pursuant to Section 4(n)) Securities Act liability insurance (if
the Company elects to obtain such insurance), the reasonable fees
and expenses of any special experts or other Persons retained by
the Company in connection with any registration, the reasonable
fees and disbursements of Holders' Counsel and any reasonable
out-of-pocket expenses of the Holders and their agents (other
than their counsel) including any reasonable travel costs (all
such expenses being herein called "Registration Expenses"), will
be borne by the Company whether or not the Registration Statement
to which such expenses relate becomes effective provided,
however, that Registration Expenses shall not include (i)
underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable
Securities or (ii) any fees or expenses of any counsel,
accountants or other persons retained or employed by the Holders
other than as provided above.
Section 8. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law,
each Holder, its partners, officers, directors, trustees,
stockholders, employees, agents and investment advisers, and each
Person who controls such Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, such
Holder, together with the partners, officers, directors,
trustees, stockholders, employees and agents of such controlling
Person (collectively, the "Controlling Persons"), from and
against all losses, claims, damages, liabilities and expenses
(including without limitation any legal or other fees and
expenses reasonably incurred by any Holder or any such
Controlling Person in connection with defending or investigating
any action or claim in respect thereof) (collectively, the
"Damages") to which such Holder, its partners, officers,
directors, trustees, stockholders, employees, agents and
investment advisers, and any such Controlling Person may become
subject under the Securities Act or otherwise, insofar as such
Damages (or proceedings in respect thereof) arise out of or are
based upon any untrue or alleged untrue statement of material
fact contained in any Registration Statement (or any amendment
thereto) pursuant to which Registrable Securities were registered
under the Securities Act, including all documents incorporated
therein by reference, or caused by any omission or alleged
omission to state therein a material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except
insofar as such Damages arise out of or are based upon any such
untrue statement or omission based upon information relating to
such Holder furnished in writing to the Company by such Holder
expressly for use therein. In connection with an underwritten
offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such
underwriters (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of
the Holders of Registrable Securities except with respect to
information provided by the underwriter specifically for
inclusion therein.
(b) Indemnification by the Holders. Each Holder agrees,
severally and not jointly, to indemnify and hold harmless the
Company, its directors, officers and each Person, if any, who
controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such
Holder, but only with reference to information relating to such
Holder furnished to the Company in writing by such selling Holder
expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement
thereto); provided, however, that such selling Holder shall not
be obligated to provide such indemnity to the extent that such
Damages result from the failure of the Company to promptly amend
or take action to correct or supplement any such Registration
Statement or Prospectus on the basis of corrected or supplemental
information provided in writing by such selling Holder to the
Company expressly for such purpose. In no event shall the
liability of any Holder of Registrable Securities hereunder be
greater in amount than the amount of the proceeds received by
such Holder upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
(c) Indemnification Procedures. In case any proceeding
(including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such Person (the
"indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceedings and shall pay the fees and
disbursements of such counsel relating to such proceeding. In
any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel, or (ii) the
indemnifying party fails promptly to assume the defense of such
proceeding or fails to employ counsel reasonably satisfactory to
such indemnified party or parties, or (iii) (A) the named parties
to any such proceeding (including any impleaded parties) include
both such indemnified party or parties and any indemnifying party
or an Affiliate of such indemnified party or parties or of any
indemnifying party, (B) there may be one or more defenses
available to such indemnified party or parties or such Affiliate
of such indemnified party or parties that are different from or
additional to those available to any indemnifying party or such
Affiliate of any indemnifying party and (C) such indemnified
party or parties shall have been advised by such counsel that
there may exist a conflict of interest between or among such
indemnified party or parties or such Affiliate of such
indemnified party or parties and any indemnifying party or such
Affiliate of any indemnifying party, in which case, if such
indemnified party or parties notifies the indemnifying party or
parties in writing that it elects to employ separate counsel of
its choice at the expense of the indemnifying parties, the
indemnifying parties shall not have the right to assume the
defense thereof and such counsel shall be at the expense of the
indemnifying parties, it being understood, however, that unless
there exists a conflict among indemnified parties, the
indemnifying parties shall not, in connection with any one such
proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together
with appropriate local counsel) at any time for such indemnified
party or parties. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written
consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any
loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party
is a party, and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
(d) Contribution. To the extent that the indemnification
provided for in paragraph (a) or (b) of this Section 8 is
unavailable to an indemnified party or insufficient in respect of
any Damages, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
party as a result of such Damages in such proportion as is
appropriate to reflect the relative fault of the Company on the
one hand and the Holders on the other hand in connection with the
statements or omissions that resulted in such Damages, as well as
any other relevant equitable considerations. The relative fault
of the Company on the one hand and of the Holders on the other
hand 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 Company or by the Holders
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
Notwithstanding the provisions of this Section 8(d), no
Holder shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable
Securities of such Holder were offered to the public (less any
underwriting discounts and commissions) exceeds the amount of any
damages which such Holder has otherwise been required to pay by
reason of such untrue statement or omission. Each Holder's
obligation to contribute pursuant to this Section 8(d) is several
in the proportion that the proceeds of the offering received by
such Holder bears to the total proceeds of the offering received
by all the Holders and not joint.
If indemnification is available under paragraph (a) or (b)
of this Section 8, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in such paragraphs
without regard to the relative fault of said indemnifying party
or indemnified party or any other equitable consideration
provided for in this Section 8(d).
The Company and each Holder agrees that it would not be just
or equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the Damages referred to in
this Section 8 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred (and not otherwise reimbursed) by such
indemnified party in connection with investigating or defending
any such action or claim. 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
remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
Section 9. Rule 144 Provisions.
(a) Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and
the Exchange Act (or, if the Company is not required to file such
reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales
under Rule 144 under the Securities Act), and it will take such
further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rules may be amended from
time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Holder, the
Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
(b) Rule 144A. Upon the request of any Holder, the Company
shall deliver to such holder within 10 days following receipt by
the Company of such request, the information required by Section
(d)(4) of Rule 144A under the Securities Act, as such rule may be
amended from time to time or any similar rule or regulation
hereafter adopted by the Commission ("Rule 144A"), and will take
such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the
Securities Act within the limitations or the exemptions provided
by Rule 144A. All information shall be "reasonably current" as
defined in Rule 144A.
Section 10. Restrictions on Sale by the Company and
Others.
In the event of an underwritten public offering for the
account of the Company with respect to which the Holders have the
right to exercise their rights to Piggy-Back Registration
pursuant to Section 3 hereof, upon the written request (the
"Lock-up Request") of the managing underwriter (or underwriters)
of such offering, which request shall be made at least 20 days
prior to the anticipated effective date of the Registration
Statement for such offering, each Holder agrees not to effect any
public sale or distribution of any securities similar to those
being registered in such offering (other than pursuant to such
offering), including without limitation, through sales of
Registrable Securities pursuant to the Shelf Registration
Statement, during the 10 days prior to, and during the 90-day
period beginning on, the effective date of the Registration
Statement relating to such offering.
Section 11. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of the Holders of a
majority in interest of the Registrable Securities then
outstanding.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by
telecopier, registered or certified mail (return receipt
requested), postage prepaid or courier to the parties at their
respective addresses set forth on the signature pages hereof (or
at such other address for any party as shall be specified by like
notice, provided that notices of a change of address shall be
effective only upon receipt thereof). All such notices and
communications shall be deemed to have been received: at the
time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged, if telecopied; and on the
next business day if timely delivered to a courier guaranteeing
overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent
Holders. If any transferee of any Holder shall acquire
Registrable Securities in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively
deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof.
(d) 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.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law.
(g) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability
of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges
of the Holders shall be enforceable to the fullest extent
permitted by law.
(h) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended
to be the 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. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter.
(i) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement or where any provision
hereof is validly asserted as a defense, the successful party
shall, to the extent permitted by applicable law, be entitled to
recover reasonable attorneys' fees and expenses in addition to
any other available remedy.
(j) Further Assurances. Each party shall cooperate and
take such action as may be reasonably requested by another party
in order to carry out the provisions and purposes of this
Agreement and the transactions contemplated hereby.
(k) Remedies. Except as provided in Section 2 of this
Agreement with respect to liquidated damages, in the event of a
breach or a threatened breach by any party to this Agreement of
its obligations under this Agreement, any party injured or to be
injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in
this Agreement and granted by law. Except as otherwise provided
in Section 2 of this Agreement with respect to liquidated
damages, the parties agree that the provisions of this Agreement
shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, is inadequate
and that any objection in any action for specific performance or
injunctive relief that a remedy at law would be adequate is
waived.
(l) Limitation of Liability. Each party to this Agreement
hereby acknowledges and agrees to the limitation of liability
with respect to certain of the Holders as set forth on such
Holder's signature page.
IN WITNESS WHEREOF, the parties have caused this
Registration Rights Agreement to be duly executed by their
respective officers hereunto duly authorized, as of the day and
year first above written.
KEY ENERGY GROUP, INC.
By:
Name: Francis D. John
Title: Chief Executive Officer
Address: 255 Livingston Avenue
New Brunswick, New Jersey 08901
Telecopier: (908) 247-5148
