UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
Forcenergy Inc
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(Name of Issuer)
Common Stock, Par Value $.01 Per Share
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(Title of Class of Securities)
345206 10 6
-----------------
(CUSIP Number)
E. Joseph Grady
c/o Forcenergy Inc
2730 S.W. 3rd Avenue, Suite 800
Miami, Florida 33129-2356
(305) 856-8500
-----------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
March 31, 1998
------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box /_/.
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 9 Pages
<PAGE>
SCHEDULE 13D
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CUSIP No. 345206 10 6 Page 2 of 9 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Forcenergy AB (no IRS Identification No.)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) /_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Sweden
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0 shares of Common Stock
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH none
REPORTING ------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0 shares of Common Stock
------------------------------------------------
10 SHARED DISPOSITIVE POWER
none
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0 shares of Common Stock
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
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14 TYPE OF REPORTING PERSON
HC
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 345206 10 6 Page 3 of 9 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Forsinvest AB (no IRS Identification No.)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
Not applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) /_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Sweden
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NUMBER OF 7 SOLE VOTING POWER
SHARES 1,925,966 shares of Common Stock
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH none
REPORTING ------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 1,925,966 shares of Common Stock
------------------------------------------------
10 SHARED DISPOSITIVE POWER
none
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,925,966 shares of Common Stock.
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/_/
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.8%
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14 TYPE OF REPORTING PERSON
HC
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 345206 10 6 Page 4 of 9 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Eric Forss (no IRS Identification No.)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) /_/
(b) /_/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
Not applicable
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) /_/
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Sweden
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NUMBER OF 7 SOLE VOTING POWER
SHARE 16,184
BENEFICIALLY ------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 1,925,966 shares of Common Stock
REPORTING ------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 16,184
------------------------------------------------
10 SHARED DISPOSITIVE POWER
1,925,966 shares of Common Stock
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,942,150 shares of Common Stock
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
|X|
Excludes 31,000 shares of Common Stock issuable upon the exercise of
vested director stock options
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.9%
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14 TYPE OF REPORTING PERSON
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
The title of the class of the equity securities to which this Amendment
No. 1 to the Statement on Schedule 13D relates is common stock, par value $.01
per share (the "Common Stock"). The name and address of the principal executive
offices of the issuer of such securities is Forcenergy Inc, a publicly held
Delaware corporation (the "Issuer"), 2730 S.W. 3rd Avenue, Suite 800, Miami,
Florida 33129-2356. The Issuer was incorporated under the name Forcenergy Gas
Exploration, Inc.
This Amendment No. 1 is being filed jointly by Forcenergy AB, a
publicly held Swedish corporation ( "FAB"), Forsinvest AB, a privately held
Swedish corporation ("Forsinvest"), and Eric Forss, a citizen of the Kingdom of
Sweden. Information provided in this Amendment No. 1 to the Statement on
Schedule 13D is as of the date of filing unless otherwise specified below. This
Amendment No. 1 amends the reporting persons' previous joint Statement as
follows:
ITEMS 2, 3 AND 5 ARE HEREBY AMENDED TO REFLECT THE FOLLOWING INFORMATION:
Effective March 31, 1998, the Issuer issued and delivered 7,772,636
shares of its Common Stock in exchange for 1,000,000 Series A common shares of
FAB and 13,011,078 Series B common shares of FAB, representing approximately
97.4% of the economic interest and 98.4% of the voting rights of FAB, in
connection with the exchange offer by the Issuer for all outstanding shares of
FAB.
As a result of the completion of the exchange offer, the Issuer
controls FAB, and the 8,740,486 shares of Common Stock held by FAB are no longer
considered outstanding for accounting purposes under U. S. generally accepted
accounting principles or for voting purposes under Delaware law. Accordingly,
the beneficial ownership of the shares of Common Stock held by FAB after the
exchange offer is 0.
In connection with the exchange offer, Eric Forss tendered 30,200
Series B common shares of FAB and received and currently owns directly 16,184
shares of Common Stock, which are held in the form of Swedish Depository
Receipts.
In connection with the exchange offer, Forsinvest AB tendered 1,000,000
Series A common shares of FAB and 2,194,433 Series B common shares of FAB
(including 40,000 Series B common shares formerly held by Stridor Invest AB, a
Swedish company controlled by Mr. Forss which was merged into Forsinvest AB)
received and currently owns directly 1,925,966 shares of Common Stock, which are
held in the form of Swedish Depository Receipts.
ITEM 6 IS HEREBY AMENDED TO ADD THE FOLLOWING INFORMATION:
In connection with the completion of the exchange offer, the Issuer,
Eric Forss and Forsinvest AB entered into a Registration Rights Agreement, dated
as of March 31, 1998, pursuant to which the Issuer has granted such stockholders
the right on one occasion to require the Issuer to register all or part of the
shares of Common Stock received by such stockholders in connection with the
exchange offer under the Securities Act of 1933, unless (i) an exemption for
such proposed sale exists under the Securities Act of 1933 or (ii) the Issuer
has given notice of its intention to file a registration statement. The
Registration Rights Agreement also provides for piggyback registration rights to
such stockholders in any offering by the Issuer of any securities to the public
except a registration statement on Forms S-4 or S-8. The Issuer will bear the
expenses, excluding any underwriting discounts and commissions, of all such
registrations. A copy of the Registration Rights Agreement is filed as Exhibit C
hereto and is incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
A. Shareholders' Agreement, dated as of December 18, 1997, among
Forcenergy Inc, Forsinvest AB, Eric Forss and Stridor Invest
AB. (Previously filed).
B. Agreement for Joint Filing on Behalf of Each Reporting Person.
(Previously filed).
C. Form of Registration Rights Agreement, dated as of March 31,
1997, among Forcenergy Inc, Eric Forss and Forsinvest AB.
Page 5 of 9 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned hereby certifies that the information set forth in this
statement is true, complete and correct.
Date: April 6, 1998
FORCENERGY AB
By:/s/ ERIC FORSS
-----------------------------
Name: Eric Forss
Title: President
Page 6 of 9 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned hereby certifies that the information set forth in this
statement is true, complete and correct.
Date: April 6, 1998
FORSINVEST AB
By:/s/ ERIC FORSS
-----------------------------
Name: Eric Forss
Title: Director
Page 7 of 9 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned hereby certifies that the information set forth in this
statement is true, complete and correct.
Date: April 6, 1998
ERIC FORSS
/s/ ERIC FORSS
---------------------------
Eric Forss
Page 8 of 9 Pages
<PAGE>
Exhibit Index
A. Shareholders' Agreement, dated December 18, 1997, among the Forcenergy
Inc, Forsinvest AB, Eric Forss and Stridor Invest AB. (Previously
filed).
B. Agreement for Joint Filing on Behalf of Each Reporting Person.
(Previously filed).
C. Form of Registration Rights Agreement, dated as of March 31, 1997,
among Forcenergy Inc, Eric Forss and Forsinvest AB.
Page 9 of 9 Pages
<PAGE>
Exhibit C
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
March 31, 1998 (the "Effective Date"), is by and among Forcenergy Inc, a
Delaware corporation (the "Company"), and those shareholders of Forcenergy AB, a
Swedish corporation ("FAB"), whose signatures appear on the signature pages
hereof (the "Shareholders").
R E C I T A L S:
WHEREAS, the Company and the Shareholders are parties to that certain
Shareholder Agreement dated December 18, 1997 (the "Shareholder Agreement");
WHEREAS, pursuant to the Shareholder Agreement and an offer by the
Company to all holders of Series A common shares and Series B common shares of
FAB (the "Exchange Offer") to exchange such shares of FAB for shares of Common
Stock, par value $0.01 per share, of the Company (the "Common Stock"), or
Swedish Depositary Receipts ("SDRs") representing beneficial ownership of
underlying shares of Common Stock, the Shareholders (as well as certain other
persons) will receive shares of Common Stock or SDRs in the Exchange Offer; and
WHEREAS, under the provisions of the Securities Act of 1933, as amended
(the "Securities Act"), and the General Rules and Regulations promulgated by the
Securities and Exchange Commission (the "SEC") thereunder, the Shareholders may
be subject to certain transfer restrictions, including limitations on the manner
in which the Shareholders may sell the shares of Common Stock they receive in
connection with the Exchange Offer, absent registration under the Securities Act
of the sale of such shares of Common Stock or the availability of an exemption
from the registration requirements of the Securities Act; and
WHEREAS, the Company has agreed, on the terms and subject to the
conditions set forth herein, to grant the Shareholders certain rights to
register their shares of Common Stock for sale under the Securities Act;
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereby agree as follows:
1. DEFINITIONS. The following terms, as used herein, have the following
meanings (all terms defined herein in the singular to have the correlative
meanings when used in the plural and vice versa):
<PAGE>
"Commercially Reasonable Efforts" when used with respect to any
obligation to be performed or term or provision to be observed hereunder, means
such efforts as a prudent Person seeking the benefits of such performance or
action would make, use, apply or exercise to preserve, protect or advance its
rights or interests, provided, that such efforts do not require such Person to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal investigation that may
be necessary or appropriate to effect the relevant action; and the commencement,
termination or settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the relevant action.
"Demand Registration" means any registration of Shares under the
Securities Act effected in accordance with Section 2.1.
"Demand Registration Statement" has the meaning ascribed to such term
in Section 2.1(c).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and
regulations promulgated thereunder.
"Holders" means the Shareholders or any successor, assignee or
transferee of any Shares.
"Indemnified Party" has the meaning ascribed to it in Section 2.6(a).
"Loss" has the meaning ascribed to it in Section 2.6(a).
"Notice of Demand" means a request by a Holder pursuant to Section
2.1(a) that the Company effect the registration under the Securities Act of all
or part of the Shares held by it. A Notice of Demand shall specify an amount of
Shares proposed to be registered, which amount shall not be less than 500,000
Shares.
"Participating Holders" means, with respect to any
registration of Shares by the Company pursuant to this Agreement, any
Shareholders that are entitled to participate in, or seeking to participate in,
such registration.
"Person" means a natural person, a corporation, a limited liability
company, a partnership, a trust, a joint venture, or any other entity or
organization.
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<PAGE>
"Piggyback Registration" means any registration of Shares under the
Securities Act effected in accordance with Section 2.2.
"Piggyback Registration Notice" has the meaning ascribed to it in
Section 2.2(a).
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
(a) all registration, filing, securities exchange listing and National
Association of Securities Dealers fees, (b) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualifications of the Shares and the determination of their eligibility for
investment under the laws of all such jurisdictions, (c) all word processing,
duplicating, printing, messenger and delivery expenses, (d) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred by the
Participating Holders (including, without limitation, the reasonable fees and
disbursements for one counsel or firm of counsel selected by the Participating
Holders), (f) any fees and disbursements of underwriters customarily paid by
issuers of securities (excluding underwriting discounts, commissions and
transfer taxes, if any, relating to the Shares being registered) and (g) fees
and expenses of other Persons retained or employed by the Company. Registration
Expenses, to the extent payable by the Company, shall not include underwriting
discounts, commissions or transfer taxes payable in respect of the sale of
Shares by the Participating Holders.
"Shares" means the shares of Common Stock received by each Shareholder
(or underlying the SDRs received by each Shareholder) pursuant to the Exchange
Offer and any shares of Common Stock received in respect thereof pursuant to
dividends, distributions or stock splits.
"Successor" means, with respect to any Person, a successor to such
Person by merger, consolidation, liquidation or other similar transaction.
"Suspension Notice" has the meaning ascribed to it in Section 2.3(g).
"Suspension Period" has the meaning ascribed to it in Section 2.3(g).
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<PAGE>
2. REGISTRATION UNDER THE SECURITIES ACT.
2.1 Demand Registration.
(a) Registration on Request. Upon receipt of a Notice of Demand, the
Company shall, subject to the provisions of Section 2.1(b), use Commercially
Reasonable Efforts to (i) prepare and file a registration statement as promptly
as possible and in any event within 60 days of receipt under the Securities Act
of the Shares that the Company has been so requested to register pursuant to the
Notice of Demand and (ii) cause such registration statement to be declared
effective promptly thereafter.
(b) Limitations on Demand Registration. The Company shall not be
obligated to take any action to effect any registration pursuant to Section
2.1(a) after the Company has, in accordance with the provisions of Section
2.3(c), effected one registration of Shares with respect to registrations
requested pursuant to Section 2.1 or (ii) an exemption for such proposed sale
exists under the Securities Act.
(c) Company Undertaking Regarding Demand Registration. The Company will
use its Commercially Reasonable Efforts to promptly prepare and
file with the SEC a registration statement (the "Demand Registration Statement")
for the Shares in respect of which a Notice of Demand is given, as provided in
this Section 2.1. Such Demand Registration Statement shall relate to the offer
and sale of the Shares in respect of which the Notice of Demand is given in
accordance with the methods of distribution to be set forth in such registration
statement as directed by the Participating Holders. The Company further agrees
to use its Commercially Reasonable Efforts to take all steps necessary or
appropriate so that such Demand Registration Statement can be declared effective
promptly and, subject to the terms of Section 2.3, to keep it continuously
effective in order to permit the prospectus forming a part thereof to be used by
the Holders until the earlier of (i) 120 days after its effectiveness and (ii)
the date that the Holders sell all of the Shares subject to such registration
statement, but in no event prior to the expiration of the applicable period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder (the
"Shelf Period"); provided, however, that (x) the Company may (no more than twice
during the pendency of such Demand Registration Statement and for a period not
to exceed forty-five (45) days on any one occasion suspend use of the Demand
Registration Statement at any time if the continued effectiveness thereof would
require the Company to disclose a material financing, acquisition or other
corporate transaction, which disclosure the Board of Directors of the Company
shall have determined in good faith is not in the best interests of the Company
and its shareholders; provided, that any suspension shall result in an equal
extension of time in clause (i).
(d) Notice to certain non-Requesting Holders. Upon receipt of any
Notice of Demand from any Holder, the Company will give prompt (but in any event
within fifteen (15) days after such receipt) notice to all Holders of such
Notice of Demand and of such Holders' rights to have Shares included in such
registration (subject to priorities in registration rights set forth in this
Agreement). Upon the request of any such Holder made within fifteen (15) days
after the receipt
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<PAGE>
by such Holder of any such notice given pursuant to this Section 2.1(d) (which
request shall specify the Shares intended to be disposed of by such Holder and
the intended method or methods of disposition thereof), the Company will
(subject to any priorities in registration rights among the various Holders) use
Commercially Reasonable Efforts to effect the registration of all Shares which
the Company has been so requested to register pursuant to the Notice of Demand.
(e) Priority in Demand Registrations. If (i) a registration pursuant to
this Section 2.1 involves an underwritten offering of the securities being
registered to be distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms appropriate
for such a transaction and (ii) the managing underwriter of such underwritten
offering shall inform the Company and the Participating Holders by letter of its
belief that the amount of securities requested to be included in such
registration exceeds the amount which can be sold in (or during the time of)
such offering within a price range acceptable to the Participating Holders, then
the Company will include in such registration such amount of securities which
the Company is so advised can be sold in (or during the time of) such offering
as follows: first, such Shares requested to be included in such registration by
the Participating Holders pro rata on the basis of the amount of such securities
so proposed to be sold and so requested to be included by such parties; second,
such other securities of the Company; and third such securities of other
securities holders of the Company having piggyback registration rights which
would permit inclusion in such offering and which are requested to be included
in such registration by such other holders pro rata on the basis of the amount
of such securities so proposed to be sold and so requested to be included by
such holders.
2.2 Piggyback Registration.
(a) Right to Include Shares. If the Company at any time after the
Effective Date proposes to register any of its equity securities under the
Securities Act (other than by a registration on Form S-4 or Form S-8 or any
successor or similar form then in effect and other than pursuant to Section 2.1)
on a form and in a manner that would permit registration of the Shares, whether
or not for sale for its own account, it will give prompt (but in no event less
than fifteen (15) days prior to the proposed date of filing the registration
statement relating to such registration) notice to the Holders of the Shares of
the Company's intention to do so and of the rights of such Holders under this
Section 2.2; provided, however, that no such notice need be given to the
Holders, and the Holders shall have no rights under this Section 2.2, if the
Holders have therefore disposed of all of the Shares. Upon the request of any
Holders made within fifteen (15) days after such Holder's receipt of any such
notice (which request shall specify the Shares intended to be disposed of by the
Holders and the intended method or methods of disposition thereof) (the
"Piggyback Registration Notice"), the Company will use Commercially Reasonable
Efforts to effect the registration under the Securities Act of all Shares which
the Company has been so requested to register by the Participating Holders, to
the extent required to permit the disposition (in accordance with the intended
method or methods thereof as aforesaid) of the Shares so to be registered,
provided that if, at any time after giving notice of its intention to register
any equity securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company
-5-
<PAGE>
shall determine for any reason not to register or to delay registration of such
equity securities, the Company may, at its election, give notice of such
determination to each such Holder and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Shares in connection with such registration (but not from its obligation to
pay all Registration Expenses in connection therewith as provided in Section
2.3(b)), and (ii) in the case of a determination to delay registering such other
equity securities, shall be permitted to delay registering any Shares for the
same period as the delay in registering such other equity securities.
(b) Priority in Primary Piggyback Registrations. If (i) a registration
pursuant to this Section 2.2 involves an underwritten offering of the Shares
being registered for sale for the account of the Company to be distributed (on a
firm commitment basis) by or through one or more underwriters of recognized
standing under underwriting terms appropriate for such a transaction and (ii)
the managing underwriter of such underwritten offering shall inform the Company
and the Participating Holders of its belief that the amount of Shares requested
to be included in such registration exceeds the amount which can be sold in (or
during the time of) such offering within a price range acceptable to the
Company, then the Company will include in such registration such amount of
Shares which the Company is so advised can be sold in (or during the time of)
such offering as follows: first, if such registration relates to Shares of the
Company in respect of which a person is exercising demand registration rights,
all Shares of the Company held by such other Person; second, all Shares proposed
by the Company to be sold for its own account; and third, such Shares requested
to be included in such registration by the Participating Holders and any other
shareholder(s) of the Company then exercising piggyback registration rights pro
rata on the basis of the amount of such Shares so proposed to be sold and so
requested to be included by such holders.
2.3 Registration Terms and Procedures.
(a) Registration Statement Form. Registrations under Section 2.1 shall
be on such appropriate registration forms of the SEC (i) as shall be acceptable
to the Company and (ii) as shall permit the disposition of such Shares in
accordance with the intended method or methods of disposition. The Company
agrees to include in any such registration statement all information that any
Participating Holders shall reasonably request (to the extent such information
relates to such Participating Holders).
(b) Registration Expenses. Subject to Section 2.3(e), the Company will
pay all Registration Expenses incurred by the Company in connection with a
registration to be effected (whether or not effected or deemed effected pursuant
to subsection (c) below) pursuant to Section 2.1 or 2.2.
(c) Effectiveness of Demand Registration. A registration will not be
deemed to have been effected under Section 2.1 unless the registration
statement with respect thereto has been declared effective by the SEC and,
subject to Section 2.3(f)(vii) hereof, remains effective for the earlier of 120
days or the distribution of the securities covered by such registration
statement; provided, however, that if (i) after such registration statement has
been declared effective, the
-6-
<PAGE>
marketing of Shares offered pursuant to such registration statement is
materially disrupted or adversely affected as a result of any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court (for reasons other than a misrepresentation or omission by any
Shareholder) or (ii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration have not been satisfied (for reasons other than a wrongful or bad
faith act, omission or misrepresentation by any Participating Holder) such
registration statement will be deemed not to have become effective. If a
registration pursuant to Section 2.1 is deemed not to have been effected
hereunder, then the Company shall continue to be obligated to effect a
registration pursuant to such Section.
(d) Selection of Underwriter. The offering of Shares pursuant to
Section 2.1 shall be in such form (which may include an underwritten offering)
as the Participating Holders may elect, and if the Company so elects an offering
pursuant to Section 2.2 shall be in the form of an underwritten offering. In
connection with an underwritten offering of Shares pursuant to this Agreement,
the Holders shall have the exclusive right to select Goldman, Sachs & Co. or one
or more other nationally recognized firms of investment bankers selected by
Holders reasonably acceptable to the Company to act as the book-running managing
underwriter or co-managing underwriters in connection with such offering.
(e) Withdrawal. Any Participating Holder shall be permitted to withdraw
all or part of the Shares from such registration at any time prior to the
effective date of the registration statement covering such securities; provided
that, in the event of a withdrawal from a registration effected pursuant to
Section 2.1, such registration shall be deemed to have been effected for
purposes of Section 2.3(c), unless such Participating Holder shall have paid or
reimbursed the Company for the reasonable out-of-pocket costs and expenses paid
by the Company in respect of such registration.
(f) Registration Procedures. In connection with the Company's
obligations to register Shares pursuant to this Agreement, the Company will use
Commercially Reasonable Efforts to effect such registration so as to permit the
sale of any Shares included in such registration in accordance with the intended
method or methods of distribution thereof, and pursuant thereto the Company will
as expeditiously as possible:
(i) prepare and (as soon thereafter as practicable) file with
the SEC the requisite registration statement containing all information
required thereby to effect such registration and thereafter use
Commercially Reasonable Efforts to cause such registration statement to
become and remain effective in accordance with the terms of this
Agreement, provided, that as far in advance as practicable before
filing such registration statement or any amendment, supplement or
exhibit thereto (but, with respect to the filing of such registration
statement, in no event later than three business days prior to such
filing), the Company will furnish to the Participating Holders or its
counsel copies of reasonably complete drafts of all such documents
proposed to be filed (excluding exhibits, which shall be made available
upon request by any Participating Holder), and any such Holder shall
have the opportunity to object to any information contained therein and
the Company will make the corrections
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<PAGE>
reasonably requested by such Holder with respect to information
relating to such Holder or the plan of distribution of the Shares prior
to filing any such registration statement, amendment, supplement or
exhibit;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith (A) as reasonably requested by any Participating
Holder to which such registration statement relates (but only to the
extent such request relates to information with respect to such Holder)
and (B) as may be necessary to keep such registration statement
effective for the period referred to in Section 2.1(c) in the case of a
Demand Registration Statement or six (6) months in the case of a
registration effected pursuant to Section 2.2 (or such shorter period
as shall be necessary to complete the distribution of the securities
covered thereby, but not before the expiration of the Shelf Period),
and comply with the provisions of the Securities Act with respect to
the sale or other disposition of all securities covered by such
registration statement during such period in accordance with the
intended method or methods of disposition by the seller or sellers
thereof set forth in such registration statements;
(iii) furnish to each Holder covered by, and each underwriter
or agent participating in the disposition of securities under, such
registration statement such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case excluding all exhibits and documents incorporated
by reference, which exhibits and documents shall be furnished to any
such Person upon request), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act and any amendments and
supplements thereto relating to the Shares, in conformity with the
requirements of the Securities Act, and such other documents as such
Holder, underwriter or agent may reasonably request to facilitate the
disposition of such Shares;
(iv) use Commercially Reasonable Efforts to register or
qualify all Shares and other securities covered by such registration
statement under all applicable blue sky and other securities laws, and
to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and take any other
action which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition of the securities owned by such
Holder, except that the Company shall not for any such purpose be
required to (a) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this clause (iv) be obligated to be so qualified, (b)
subject itself to taxation in any such jurisdiction or (c) consent to
general service of process in any jurisdiction;
(v) use Commercially Reasonable Efforts to cause all Shares
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities applicable
to the Company as may be reasonably necessary to enable the seller
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<PAGE>
or sellers thereof (or underwriter or agent, if any) to consummate the
disposition of such Shares in accordance with the plan of distribution
set forth in such registration statement;
(vi) furnish to each Participating Holder a signed
counterpart, addressed to such Holder (and underwriter or agent, if
any) of:
(A) if such registration includes an underwritten
public offering, an opinion of counsel to the Company dated
the date of the closing under the underwriting agreement), and
(B) if such registration includes an underwritten
public offering, unless otherwise precluded under applicable
accounting rules, a "comfort" letter, dated the effective date
of such registration statement (and dated the date of the
closing under the underwriting agreement), signed by the
independent public accountants who have certified the
Company's financial statements included in such registration
statement,
in each case, reasonably satisfactory in form and substance to such
Shareholder (and underwriter or agent and their respective counsel) and
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriter or agent in underwritten public offerings of
securities;
(vii) promptly notify each Holder and any underwriter or agent
participating in the disposition of Shares covered by such registration
statement, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event known to the Company as a result of which,
the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made, and promptly prepare and
furnish to such Holder (or underwriter or agent, if any) a reasonable
number of copies of a supplement to or an amendment of such prospectus
as may be necessary so that, as thereafter delivered to the purchasers
of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made;
(viii) otherwise use Commercially Reasonable Efforts to comply
with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable
(but not more than fifteen (15) months) after the effective date of the
registration statement, an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and furnish to each Holder covered by
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<PAGE>
such registration statement or any participating underwriter or agent
at least three (3) business days prior to the filing a copy of any
amendment or supplement to such registration statement or prospectus;
(ix) provide and cause to be maintained a transfer agent and
registrar for all Shares covered by such registration statement from
and after a date not later than the effective date of such registration
statement;
(x) use Commercially Reasonable Efforts to list, on or prior
to the effective date of such registration statement, all Shares
covered by such registration statement on any securities exchange on
which any of the outstanding shares of Common Stock are then listed for
trading;
(xi) cooperate with each seller of Shares and each underwriter
or agent participating in the disposition of such Shares and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers;
(xii) use Commercially Reasonable Efforts to prevent the
issuance by the SEC or any other governmental agency or court of a stop
order, injunction or other order suspending the effectiveness of such
registration statement and, if such an order is issued, use
Commercially Reasonable Efforts to cause such order to be lifted as
promptly as practicable;
(xiii) take such other actions as the Participating Holders
shall reasonably request in order to expedite or facilitate the
disposition of such Shares;
(xiv) promptly notify each Participating Holder and the
underwriter or agent, if any:
(A) when such registration statement or any
prospectus used in connection therewith, or any amendment or
supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment
thereto, when the same has become effective;
(B) of any written comments from the SEC with respect
to any filing referred to in clause (A) and of any written
request by the SEC for amendments or supplements to such
registration statement or prospectus;
(C) of the notification to the Company by the SEC of
its initiation of any proceeding with respect to, or of the
issuance by the SEC of, any stop order suspending the
effectiveness of such registration statement; and
(D) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Shares for sale under the applicable securities or blue sky
laws of any jurisdiction;
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<PAGE>
(xv) cooperate with each Participating Holder and each
underwriter or agent participating in the distribution of such Shares
to facilitate the timely preparation and delivery of certificates
(which shall not bear any restrictive legends, other than as required
by applicable law) representing securities sold under a registration
statement hereunder, and enable such securities to be in such
denominations and registered in such names as such seller, underwriter
or agent may request and keep available and make available to the
Company's transfer agent, prior to the effectiveness of such
registration statement, an adequate supply of such certificates;
(xvi) not later than the effective date of such registration
statement, provide a CUSIP number for all Shares covered by a
registration statement hereunder;
(xvii) incorporate in the registration statement or any
amendment, supplement or post-effective amendment thereto such
information as each Participating Holder, the underwriter or agent (if
any) or their respective counsel may reasonably request to be included
therein with respect to any Shares being sold by such Participating
Holder to such underwriter or agent, the purchase price being paid
therefor by such underwriter or agent and any other terms of the
offering of such Shares; and
(xviii) during any period when a prospectus is required to be
delivered under the Securities Act, make periodic filings with the SEC
pursuant to and containing the information required by the Exchange Act
(whether or not the Company is required to make such filings pursuant
to such Act).
(g) Agreements of Certain Shareholders. (i) In connection with the
registration of any of the Shares, each Participating Holder shall furnish to
the Company such information regarding such Participating Holder, the Shares
held by such Participating Holder and the intended plan of distribution of such
securities as the Company may from time to time reasonably request in writing in
connection with such registration.
(ii) In connection with the registration of any of the Shares,
each Participating Holder agrees that upon receipt of any notice (a "Suspension
Notice") from the Company of the happening of any event of the kind described in
clause (vii) of Section 2.3(f), such Participating Holder will forthwith
discontinue such Participating Holder's disposition of Shares pursuant to the
registration statement relating to such Shares until such Participating Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
clause (vii) of Section 2.3(f) (the period from the date on which such
Participating Holder receives a suspension Notice to the date on which such
Participating Holder receives copies of the supplemented or amended prospectus
being herein called the "Suspension Period"). The Company shall take such
actions as are necessary to end the Suspension Period as promptly as
practicable. In the event the Company shall give any such notice, the periods
referred to in Section 2.1(c), Section 2.3(c) and clause (ii) of Section 2.3(f)
shall be extended by a number of days equal to the number of days of the
Suspension Period.
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<PAGE>
2.4 Underwritten Offerings. If the Company at any time proposes to
register any of its equity securities under the Securities Act as contemplated
by Section 2.2 and such securities are to be distributed by or through one or
more underwriters, the Company will, if requested by any Participating Holder
and subject to Section 2.2(b), arrange for such underwriters to include all of
the Shares to be offered and sold by the such Participating Holder or Holders
among the securities to be distributed by such underwriters. Such Participating
Holder shall be a party to the underwriting agreement between the Company and
such underwriters, provided that such agreement is reasonablely satisfactory in
substance and form to the Company and the Participating Holders.
2.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Shares to be
registered under such registration statement, and their respective counsel and
accountants reasonable access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders or their counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
2.6 Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each Participating Holder,
its directors, officers, shareholders, employees, investment advisers and
agents, either direct or indirect, and each other Person, if any, who controls
such Persons within the meaning of the Securities Act (each such Person, an
"Indemnified Party"), from and against any losses, claims, damages, liabilities
or expenses, joint or several (each a "Loss" and collectively, "Losses"), to
which such Indemnified Party may become subject under the Securities Act or
otherwise, to the extent that such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which any of the Shares were registered under
the Securities Act in accordance with this Agreement (including all documents
incorporated therein by reference), and preliminary prospectus, final prospectus
or summary prospectus contained therein, 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,
and the Company will reimburse such Indemnified Party for any legal or any other
expenses reasonably incurred by it in connection with investigating or defending
against any such Loss, action or proceeding; provided that in any such case the
Company shall not be liable to any particular Indemnified Party to the extent
that such Loss (or action or proceeding in respect thereof) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Party specifically for inclusion therein; and
provided, further, that the Company shall not be liable in any such case to the
extent it is finally determined
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<PAGE>
by a court of competent jurisdiction that any such Loss (or action or proceeding
in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made
(i) in any such preliminary prospectus, if (A) it was the
responsibility of such Indemnified Party to provide the Person
asserting such Loss with a current copy of the prospectus and such
Indemnified Party failed to deliver or cause to be delivered a copy of
the prospectus to such Person after the Company had furnished such
Indemnified Party with a sufficient number of copies of the same prior
to the sale of Shares to the Person asserting such Loss and (B) the
prospectus corrected such untrue statement or omission; or
(ii) in such prospectus, if such untrue statement or omission
is corrected in an amendment or supplement to such prospectus and such
amendment or supplement has been delivered to the Indemnified Party
prior to the sale of Shares to the Person asserting such Loss and the
Indemnified Party thereafter fails to deliver the prospectus as so
amended or supplemented prior to or concurrently with such sale after
the Company had furnished such Indemnified Party (in accordance with
the notice provisions contained in Section 8 for Persons who are
parties to this Agreement) with a sufficient number of copies of the
same for delivery to purchasers of securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of such securities by such Indemnified Party. The Company shall
also indemnify each other Person who participates (including as an underwriter)
in the offering or sale of Shares hereunder, their officers and directors and
each other Person, if any, who controls any such participating Person within the
meaning of the Securities Act to the same extent as provided above with respect
to Indemnified Parties.
(b) Indemnification by the Participating Holders. (i) The
Company may require, as a condition to including any Shares in any registration
statement filed pursuant to Section 2.1 or 2.2 and as a condition to
indemnifying such sellers pursuant to this Section 2.6, that the Company shall
have received an undertaking reasonably satisfactory to it from each
Participating Holder of such Shares to indemnify and hold harmless and reimburse
(in the same manner and to the same extent as set forth in paragraph (a) of this
Section 2.6) the Company, each director, officer, employee and agent of the
Company, and each other Person, if any, who controls the Company within the
meaning of the Securities Act, from and against any Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such securities were
registered under the Securities Act (including all documents incorporated
therein by reference), any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission from such registration statement, preliminary
prospectus, final prospectus or summary prospectus, or any amendment or
supplement thereto required to be stated therein or necessary to make the
statements therein not misleading, if (but only if) such untrue statement or
alleged untrue statement or omission
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<PAGE>
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Participating Holder specifically
for inclusion therein; provided, however, that such Participating Holder shall
not be obligated to provide such indemnity to the extent that such Losses
result, directly or indirectly, from the failure of the Company to promptly
amend or take action to correct or supplement any such registration statement,
prospectus, amendment or supplement based on corrected or supplemental
information provided in writing by such Participating Holder to the Company
expressly for such purpose; and provided, further, that the obligation to
provide indemnification pursuant to this Section 2.6(b) shall be several, and
not joint and several, among such indemnifying parties. Notwithstanding anything
in this Section 2.6(b) to the contrary, in no event shall the liability of any
Participating Holder under such indemnity be greater in amount than the amount
of the proceeds received by such seller upon the sale of its Shares in the
offering to which the Losses relate. Such indemnity shall remain in full force
and effect, regardless of any investigation made by or on behalf of the Company
or any such director, officer, employee, agent or participating or controlling
Person and shall survive the transfer of such securities by such Participating
Holder.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in paragraph (a) or (b) of this Section 2.6, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give prompt written notice to the latter of the commencement of such
action, provided that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under this Section 2.6, except to the extent that the indemnifying party is
actually and materially prejudiced by such failure to give notice. In case any
such action is brought against an indemnified party, the indemnifying party
shall be entitled to participate in and to assume the defense thereof (such
assumption to constitute its acknowledgment of its agreement to indemnify the
indemnified party with respect to such matters), jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal fees or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if, in such indemnified party's
reasonable judgment, a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, such indemnified party
shall be entitled to separate counsel for such claim at the expense of the
indemnifying party; and provided, further, that, unless there exists a conflict
of interest among indemnified parties, all indemnified parties in respect of
such claim shall be entitled to only one counsel or firm of counsel for all such
indemnified parties. In the event an indemnifying party shall not be entitled,
or elects not, to assume the defense of a claim, such indemnifying party shall
not be obligated to pay the fees and expenses of more than one counsel or firm
of counsel for all parties indemnified by such indemnifying party in respect of
such claim, unless in the reasonable judgment of any such indemnified party a
conflict of interest exists between such indemnified party and any other of such
indemnified parties in respect of such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of one additional counsel
or firm of counsel for such
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<PAGE>
indemnified parties. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that (i) does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all Losses in
respect of such claim or litigation or (ii) would impose injunctive relief on
such indemnified party. No indemnifying party shall be subject to any Losses for
any settlement made without its consent, which consent shall not be unreasonably
withheld.
(d) Other Indemnification. The provisions of this Section 2.6 shall be
in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or otherwise.
(e) Indemnification Payments. The indemnification required by this
Section 2.6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, promptly as and when bills are received
or Losses are incurred.
(f) Contribution. If for any reason the foregoing indemnity and
reimbursement is unavailable or is insufficient to hold harmless an indemnified
party under paragraph (a) or (b) of this Section 2.6, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of any Loss (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Loss, action or proceeding, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other. The relative fault 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 indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding anything in this Section 2.6(f) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 2.6(f) to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Shares in the
offering to which the Losses of the indemnified parties relate exceeds the
amount of any damages which such indemnifying party has otherwise been required
to pay by reason of such untrue statement or 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.
3. TERM. This Agreement shall be effective on the date hereof and,
subject to Section 13 hereof, shall continue in full force and effect until the
Holders have disposed of all Shares covered hereby.
4. AMENDMENTS AND WAIVERS. This Agreement may be amended, supplemented
or modified at any time; provided that the Company has provided its written
consent to such amendment, supplement or modification. Any term or condition of
this Agreement may be
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<PAGE>
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same term or
condition of this Agreement on any future occasion.
5. ENTIRE AGREEMENT. This Agreement supersedes all prior discussions
and agreements between the parties with respect to the subject matter hereof and
contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
6. NO THIRD-PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party and their respective
Successors and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than (i) any Holder entitled to
notice of the registration of securities under this Agreement and (ii) any
Participating Holder entitled to indemnity under Section 2.6.
7. INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, (i) such
provision will be fully severable, (ii) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
8. NOTICES. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only (i) if
delivered personally (ii) by facsimile transmission, (iii) by Federal Express or
other nationally recognized courier service or (iv) mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to the Company, to:
Forcenergy Inc
2730 S.W. 3rd Ave., Suite 800
Miami, Florida 33129-2237
Attention: Thomas F. Getten
Fax No.: (305) 856-4300
copy to: E. Joseph Grady
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<PAGE>
With respect to the Holders, any notice, request or other communication
hereunder shall be sent to the addresses and facsimile numbers appearing beneath
such Shareholder's signature on the signature page hereof or to the addresses
and facsimile numbers provided to the Company and the other parties hereto by
notice as herein provided and referencing this Agreement. All such notices,
requests and other communications will (i) if delivered personally to the
address as provided in this Section 8, be deemed given upon delivery, (ii) if
delivered by facsimile transmission to the facsimile number as provided in this
Section 8, be deemed given upon receipt, and (iii) if delivered by courier
service or mail in the manner described above to the address as provided in this
Section 8, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section 8). Any Person
from time to time may change its address, facsimile number or other information
for the purpose of notices to that Person by giving notice in accordance with
this Section 8 specifying such change to each of the other parties executing
this Agreement.
9. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
Successors and permitted assigns or transferees.
10. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience of
reference only and do not define or limit the provisions hereof or otherwise
affect the meaning hereof.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to the
conflicts of law principles thereof.
12. TERMINATION OF CERTAIN RIGHTS AND OBLIGATIONS. The provisions of
Section 2.6, the rights of any party hereto with respect to the breach of any
provision hereof and any obligation accrued as of the date of termination shall
survive the termination of this Agreement.
13. NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into, modify, amend or waive any agreement with respect to its securities if
such agreement, modification or waiver would conflict with the rights granted
pursuant to this Agreement to the Shareholders of Shares.
14. SPECIFIC PERFORMANCE. The parties agree that, to the extent
permitted by law, (i) the obligations imposed on them in this Agreement are
special, unique and of an extraordinary character, and that in the event of a
breach by any such party damages would not be an adequate remedy and (ii) each
of the other parties shall be entitled to specific performance and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled at law or in equity.
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15. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same instrument.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
FORCENERGY INC
By:
Stig Wennerstrom
President and Chief Executive Officer
SHAREHOLDERS:
Eric Forss
Address:
Fax:
FORSINVEST AB
By:
Name:
Address:
Fax:
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SCHEDULE I
Shareholders Parties to Registration Rights Agreement
SHAREHOLDER NUMBER OF SHARES OF
FORCENERGY INC
COMMON STOCK OWNED
Eric Forss 16,184
Forsinvest AB 1,925,966
