REGISTRATION RIGHTS AGREEMENT
Dated as of June 22, 2000
By and Among
DEVON ENERGY CORPORATION,
as Issuer,
and
[Intentionally Omitted]
and
[Intentionally Omitted]
as Initial Purchasers
Zero Coupon Convertible Senior Debentures due 2020
TABLE OF CONTENTS
Page
1. DEFINITIONS........................................................ 1
2. SHELF REGISTRATION................................................. 4
3. LIQUIDATED DAMAGES................................................. 5
4. REGISTRATION PROCEDURES............................................ 6
5. REGISTRATION EXPENSES.............................................. 12
6. INDEMNIFICATION.................................................... 13
7. RULES 144 AND 144A................................................. 15
8. UNDERWRITTEN REGISTRATIONS......................................... 16
9. MISCELLANEOUS...................................................... 16
REGISTRATION RIGHTS AGREEMENT
PREAMBLE
This Registration Rights Agreement (the "AGREEMENT") is dated as of
June 22, 2000, by and among DEVON ENERGY CORPORATION, a Delaware corporation
(the "COMPANY"), [Intentionally Omitted] and [Intentionally Omitted]
(collectively, the "INITIAL PURCHASERS").
RECITALS
This Agreement is entered into in connection with the Purchase
Agreement, dated today (the "PURCHASE AGREEMENT"), by and among the Company and
the Initial Purchasers, which provides for the sale by the Company to the
Initial Purchasers of $760,000,000 aggregate principal amount at maturity of the
Company's Zero Coupon Convertible Senior Debentures due 2020 (the "FIRM
DEBENTURES"), which are convertible into common stock of the Company, par value
$0.10 per share (the "UNDERLYING SHARES"), plus up to an additional $220,000,000
aggregate principal amount at maturity of debentures which the Initial
Purchasers may subsequently elect to purchase pursuant to the terms of the
Purchase Agreement (the "ADDITIONAL DEBENTURES" and together with the Firm
Debentures, the "CONVERTIBLE DEBENTURES"). The Convertible Debentures are being
issued pursuant to an indenture to be dated as of June 27, 2000 (the
"INDENTURE"), between the Company and The Bank of New York, as trustee (the
"TRUSTEE").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and any subsequent
holder or holders of the Convertible Debentures or Underlying Shares as provided
herein. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligations to purchase the Firm Debentures under the
Purchase Agreement.
AGREEMENT
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ADDITIONAL DEBENTURES: Has the meaning given such term in the
Recitals.
AGREEMENT: Has the meaning given such term in the Preamble.
AMOUNT OF REGISTRABLE SECURITIES: (a) With respect to Convertible
Debentures constituting Registrable Securities, the aggregate principal amount
at maturity of all such Convertible Debentures outstanding, (b) with respect to
Underlying Shares constituting
Registrable Securities, the aggregate number of such Underlying Shares
outstanding multiplied by the Conversion Price (as defined in the Indenture
relating to the Convertible Debentures upon the conversion of which such
Underlying Shares were issued) in effect at the time of computing the Amount
of Registrable Securities or, if no such Convertible Debentures are then
outstanding, the last Conversion Price that was in effect under such
Indenture when any such Convertible Debentures were last outstanding, and (c)
with respect to combinations thereof, the sum of (a) and (b) for the relevant
Registrable Securities.
BOARD: The Board of Directors of the Company.
BUSINESS DAY: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
CLOSING DATE: June 27, 2000.
COMPANY: Has the meaning given such term in the Preamble.
CONVERTIBLE DEBENTURES: Has the meaning given such term in the
Recitals.
DAMAGES PAYMENT DATE: See Section 3(c) hereof.
DEPOSITARY: The Depository Trust Company until a successor is appointed
by the Company.
EFFECTIVENESS DATE: The 180th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 2(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
HOLDER: Any holder owner of a beneficial interest in Registrable
Securities.
INDEMNIFIED HOLDER: See Section 6 hereof.
INDEMNIFIED PERSON: See Section 6 hereof.
INDEMNIFYING PERSON: See Section 6 hereof.
INDENTURE: has the meaning given such term in the Recitals.
INITIAL PURCHASERS: has the meaning given such term in the Preamble.
INITIAL SHELF REGISTRATION: See Section 2(a) hereof.
INSPECTORS: See Section 4(n) hereof.
LIQUIDATED DAMAGES: See Section 3(a) hereof.
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NASD: See Section 4(q) hereof.
PERSON: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any 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, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: has the meaning given such term in the Recitals.
QIU: See Section 4(q) hereof.
RECORDS: See Section 4(n) hereof.
REGISTRABLE SECURITIES: All Convertible Debentures and all Underlying
Shares upon original issuance thereof and at all times subsequent thereto until
the earliest to occur of (i) a Registration Statement covering such Convertible
Debentures and Underlying Shares having been declared effective by the SEC and
such Convertible Debentures and Underlying Shares having been disposed of in
accordance with such effective Registration Statement, (ii) such Convertible
Debentures and Underlying Shares having been sold in compliance with Rule 144 or
could (except with respect to affiliates of the Company within the meaning of
the Securities Act) be sold in compliance with Rule 144(k), or (iii) such
Convertible Debentures and any Underlying Shares ceasing to be outstanding.
REGISTRATION DEFAULT: See Section 3(a) hereof.
REGISTRATION STATEMENT: Any registration statement of the Company filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
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RULE 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
SHELF REGISTRATION: See Section 2(b) hereof.
SHELF REGISTRATION STATEMENT: See Section 2(b) hereof.
SUBSEQUENT SHELF REGISTRATION: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
TRUSTEE: has the meaning given such term in the Recitals.
UNDERLYING SHARES: has the meaning given such term in the Recitals.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. SHELF REGISTRATION
(a) SHELF REGISTRATION. As soon as practicable after the Closing Date,
the Company shall use its reasonable best efforts to file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities (the "INITIAL SHELF
REGISTRATION"). The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by Holders in the manner or manners designated by them (including,
without limitation, one but only one underwritten offering). The Company shall
not permit any securities other than the Registrable Securities to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or prior
to the Effectiveness Date and to keep such Initial Shelf Registration
continuously effective under the Securities Act until the date that is two years
from the Closing Date (as it may be shortened pursuant to clause (i) or clause
(ii) immediately following, the "EFFECTIVENESS PERIOD"), or such shorter period
ending when (i) all Registrable Securities covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) the date on which all the Registrable
Securities (x) held by Persons who are not affiliates of the Company may be
resold pursuant to Rule 144(k) under the Securities Act or (y) cease to be
outstanding, or (iii) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
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(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company shall use its reasonable
best efforts to obtain the withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 45 days of such cessation of
effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Securities (a "SUBSEQUENT SHELF REGISTRATION"). If a Subsequent
Shelf Registration is filed, the Company shall use its reasonable best efforts
to cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
Registration Statement continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days during
which the Initial Shelf Registration or any Subsequent Shelf Registration was
previously continuously effective. As used herein the term "SHELF Registration"
means the Initial Shelf Registration and any Subsequent Shelf Registration and
the term "SHELF REGISTRATION STATEMENT" means any Registration Statement filed
in connection with a Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Company shall supplement and amend
the Shelf Registration if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by the Holders of the
majority in Amount of Registrable Securities covered by such Registration
Statement or by any underwriter of such Registrable Securities.
3. LIQUIDATED DAMAGES
(a) The Company and the Initial Purchaser agree that the Holders of
Registrable Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay liquidated damages on the Registrable Securities at a rate of
0.50% per annum on the Amount of Registrable Securities ("LIQUIDATED DAMAGES")
under the circumstances (each of which shall be given independent effect; each a
"REGISTRATION DEFAULT"):
(i) if the Company fails to use its reasonable best efforts to
cause the Initial Shelf Registration to be declared effective by the
SEC on or prior to the Effectiveness Date, then commencing one day
after the Effectiveness Date, Liquidated Damages shall accrue on the
Registrable Securities; and
(ii) if a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than as permitted under SECTION 2(b) or
3(b)), then Liquidated Damages shall accrue on the Registrable
Securities;
PROVIDED, HOWEVER, that Liquidated Damages on the Registrable Securities may not
accrue under more than one of the foregoing clauses (i) and (ii); PROVIDED,
FURTHER, HOWEVER, that (1) upon the effectiveness of the Shelf Registration as
required hereunder (in the case of clause (a)(i) of this
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SECTION 3), or (2) upon the effectiveness of a Shelf Registration which had
ceased to remain effective (in the case of (a)(ii) of this SECTION 3),
Liquidated Damages on the Registrable Securities as a result of such clause
(or the relevant subclause thereof), as the case may be, shall cease to
accrue. It is understood and agreed that, notwithstanding any provision to
the contrary, so long as any Registrable Security is then capable of being
sold under an effective Shelf Registration Statement, no Liquidated Damages
shall accrue on such Registrable Security.
(b) Notwithstanding paragraph (a) of this SECTION 3, if the Company
determines in good faith that it is the best interest of the Company not to
disclose the existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company or its subsidiaries and the Company
notifies the selling Holders within two Business Days after such determination
is made, the Company may suspend the effectiveness of a Shelf Registration as a
result of such nondisclosure for up to 60 days in any three-month period but not
in excess of 90 days in any twelve-month period, without paying Liquidated
Damages.
(c) Any amounts of Liquidated Damages due pursuant to SECTION 3(a)(i)
or 3(a)(ii) will be payable in cash semi-annually on each June 27 and December
27 (each a "DAMAGES PAYMENT DATE"), commencing with the first such date
occurring after any such Liquidated Damages commences to accrue, to Holders of
record on the June 15 or December 15 next preceding such Damages Payment Date
with respect to Convertible Debentures that are Registrable Securities and to
Persons that are Holders of record on the June 15 or December 15 next preceding
such Damages Payment Date with respect to Underlying Shares that are Registrable
Securities. The amount of Liquidated Damages for Registrable Securities will be
determined on the basis of a 360-day year comprised of twelve 30-day months.
4. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
SECTION 2 hereof, the Company shall effect such registrations to permit the sale
of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by SECTION 2 hereof, and use its
reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED,
HOWEVER, that before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Securities covered by such
Registration Statement and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents proposed
to be filed (in each case, where possible, at least five Business Days
prior to such filing, or such later date as is reasonable under the
circumstances). The Company shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto if the Holders
of a majority in Amount of Registrable Securities covered by such
Registration Statement or the managing underwriters, if any, shall
reasonably object.
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(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such
Prospectus as so supplemented. The Company shall be deemed not to have
used its reasonable best efforts to keep a Registration Statement
effective during the Effectiveness Period if it voluntarily takes any
action that would result in selling Holders of the Registrable
Securities covered thereby not being able to sell such Registrable
Securities during such period unless such action is required by
applicable law or unless the Company complies with this Agreement,
including without limitation the provisions of SECTION 4(k) hereof.
(c) Notify the selling Holders of Registrable Securities and
the managing underwriters, if any, as promptly as reasonably
practicable (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 under the Securities Act (including in such notice
a written statement that any Holder may, upon request, obtain, at the
sole expense of the Company, one conformed copy of such Registration
Statement or post-effective amendment including financial statements
and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii)
of the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it
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 not misleading, and that in the case of the
Prospectus, it 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 the light of the
circumstances under which they were made, not misleading and (iv) of
the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of a Prospectus and, if
any such order is issued, to use its reasonable best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters,
if any, or the Holders of the majority in Amount of Registrable
Securities being sold in connection
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with an underwritten offering (i) as soon as reasonably practicable
incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or underwriters, if
any, or such Holders reasonably determine is necessary to be included
therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as reasonably practicable
after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment and (iii) supplement or make amendments to such
Registration Statement.
(f) Furnish to each selling Holder of Registrable Securities,
a single counsel to such Holders (chosen in accordance with SECTION
5(b)) and each managing underwriter, if any, at the sole expense of the
Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if reasonably
requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Securities,
a single counsel to such Holders (chosen in accordance with SECTION
5(b)) and the underwriters, if any, at the sole expense of the Company,
as many copies of the Prospectus (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this SECTION 4, the
Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Securities and the underwriters or agents, if any, and
dealers, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
use its reasonable best efforts to register or qualify, to the extent
required by applicable law, and to cooperate with the selling Holders
of Registrable Securities and the managing underwriter or underwriters,
if any, in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities or offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder, or
the managing underwriter or underwriters, if any, reasonably request in
writing; PROVIDED, HOWEVER, that where Registrable Securities are
offered other than through an underwritten offering, the Company agrees
to cause the Company's counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to
this SECTION 4(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the applicable Registration Statement; PROVIDED, HOWEVER, that the
Company shall not be required to (A) qualify generally to do business
in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or
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(C) subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(i) Cooperate in all reasonable respects with the selling
Holders of Registrable Securities and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Securities to be in such denominations and registered
in such names as the managing underwriter or underwriters, if any, or
selling Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities as
may be reasonably necessary to enable the seller or sellers thereof or
the underwriter or underwriters, if any, to consummate the disposition
of such Registrable Securities, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which
case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals.
(k) Upon the occurrence of any event contemplated by SECTION
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable
prepare and (subject to SECTION 4(a) hereof) file with the SEC, at the
sole expense of the Company, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, any such Prospectus will not contain 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, in the light of
the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the Initial Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and (ii) provide
a CUSIP number for the Registrable Securities.
(m) In connection with any underwritten offering of
Registrable Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
securities similar to the Registrable Securities and take all such
other actions as are reasonably requested by the managing underwriter
or underwriters in order to expedite or facilitate the registration or
the disposition of such Registrable Securities and, in such connection,
(i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of securities similar to the Registrable
Securities
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and confirm the same in writing if and when requested; (ii) obtain
the written opinion of counsel to the Company and written updates
thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings of securities similar to the Registrable
Securities and such other matters as may be reasonably requested by
the managing underwriter or underwriters; and (iii) obtain "cold
comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or
are required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of securities similar to the Registrable
Securities and such other matters as reasonably requested by the
managing underwriter or underwriters as permitted by the Statement
on Auditing Standards No. 72. The above shall be done as and to the
extent required by such underwriting agreement.
(n) Make available for inspection by any selling Holder of
Registrable Securities, any underwriter participating in any such
disposition of Registrable Securities, and any attorney, accountant or
other agent retained by any such selling Holder, or underwriter
(collectively, the "INSPECTORS"), at the offices where normally kept,
during reasonable business hours and at such time or times as shall be
mutually convenient for the Company and the Inspectors as a group, all
financial and other records, pertinent corporate documents and
instruments of the Company and its subsidiaries (collectively, the
"RECORDS") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and any Records that it
notifies the Inspectors are confidential shall not be disclosed by any
Inspector unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or material omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is, in the opinion
of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly involving or
potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or any transactions
contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public other than
through the acts of such Inspector; PROVIDED, HOWEVER, that prior
notice shall be provided as soon as practicable to the Company of the
potential disclosure of any information by such Inspector pursuant to
clauses (ii) or (iii) of this sentence to permit the Company to obtain
a protective order (or waive the provisions of this paragraph (n)).
Each Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the
extent such actions are otherwise not inconsistent with, an impairment
of, or in derogation of the rights and
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interests of the Holder or any Inspector, unless and until such
information in such Records has been made generally available to the
public other than as a result of a breach of this Agreement.
(o) Provide (i) the Holders of the Registrable Securities to
be included in such Registration Statement and not more than one
counsel for all the Holders of such Registrable Securities chosen in
accordance with SECTION 5(b), (ii) the underwriters (which term, for
purposes of this Agreement, shall include a Person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act),
if any, thereof, (iii) the sales or placement agent, if any, thereof,
and (iv) one counsel for such underwriters or agents, reasonable
opportunity to participate in the preparation of such Registration
Statement, each prospectus included therein or filed with the SEC, and
each amendment or supplement thereto.
(p) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders as soon as
practicable after the effective date of the applicable Shelf
Registration Statement an earning statements satisfying the provisions
of Section 11(a) of the Securities Act (or otherwise provide in
accordance with Section 11(a) of the Securities Act).
(q) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD"), including, if the Conduct Rules of the NASD or any successor
thereto as amended from time to time so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making
Records available to such QIU as though it were a participating
underwriter for the purposes of SECTION 4(n) and otherwise applying the
provisions of this Agreement to such QIU (including indemnification) as
though it were a participating underwriter.
(r) Cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
relating to the Registrable Securities; and in connection therewith,
cooperate with the Trustee and the Holders of the Registrable
Securities to effect such changes to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner.
(s) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time,
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reasonably request to the extent necessary or advisable to comply with the
Securities Act. The Company may exclude from such registration the
Registrable Securities of any seller if such seller fails to furnish such
information within 20 Business Days after receiving such request. Each seller
as to which any Shelf Registration is being effected agrees to furnish
promptly to the Company all information required to be disclosed so that the
information previously furnished to the Company by such seller is not
materially misleading and does not omit 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.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in SECTION 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by SECTION 4(k) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto.
5. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, including (i)
all registration and filing fees (including (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as provided in SECTION 4(h) hereof), (ii) printing expenses,
including expenses of printing certificates for Registrable Securities in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, or by the Holders of the majority in Amount
of Registrable Securities included in any Registration Statement, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and reasonable fees and disbursements of one special
counsel for the sellers of Registrable Securities (subject to the provisions of
SECTION 5(b) hereof), (v) fees and disbursements of all independent certified
public accountants referred to in SECTION 4(m)(iii) hereof (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance), (vi) Securities Act liability insurance, if the Company
desires such insurance, (vii) fees and expenses of all other Persons retained by
the Company, (viii) internal expenses of the Company (including all salaries and
expenses of officers and employees of the Company performing legal or accounting
duties), (ix) the expense of any annual audit, (x) the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements and any other documents
necessary in order to comply with this Agreement. Notwithstanding anything in
this Agreement to the contrary, each Holder shall pay all underwriting discounts
and brokerage commissions with respect to any Registrable Securities sold by it.
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(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in Amount of Registrable Securities to be included in such Registration
Statement.
6. INDEMNIFICATION
The Company agrees to indemnify and hold harmless (i) each Initial
Purchaser, (ii) each Holder and (iii) each Person, if any, who controls (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) any of the foregoing (any of the Persons referred to in this
clause (iii) being hereinafter referred to as a "controlling person" and any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "INDEMNIFIED HOLDER"), from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, reasonable
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Indemnified Holder furnished to the Company in writing by such
Indemnified Holder expressly for use in therein; PROVIDED, HOWEVER, that the
Company shall not be liable to any Indemnified Holder under the indemnity
agreement of this paragraph with respect to any preliminary prospectus to the
extent that any such loss, claim, damage, liability, judgment or expense of such
Indemnified Holder results from the fact that such Indemnified Holder sold
Registrable Securities under a Registration Statement to a Person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (or of the
preliminary prospectus as then amended or supplemented if the Company shall have
furnished such Indemnified Holder with such amendment or supplement thereto on a
timely basis), in any case where such delivery is required by applicable law and
the loss, claim, damage, liability or expense of such Indemnified Holder results
from an untrue statement or omission of a material fact contained in the
preliminary prospectus which was corrected in the Prospectus (or in the
preliminary prospectus as then amended or supplemented if the Company shall have
furnished such Indemnified Holder with such amendment or supplement thereto, as
the case may be, on a timely basis). The Company shall notify such Indemnified
Holder promptly of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves the Company or such
Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers and each Person 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 each Holder, but only with reference to such losses, claims, damages
or liabilities which are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to a Holder furnished to the Company in writing by such
Holder expressly for use in any
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Registration Statement or Prospectus, or any amendment or supplement thereto
or any related preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "INDEMNIFIED PERSON") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"INDEMNIFYING PERSON") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this SECTION 6 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person 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 Person unless (i) such
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) such Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to such Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
an Indemnifying Person and an Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that an Indemnifying Person
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Indemnified Holders shall be designated in writing by the
Holders of the majority in Amount of Registrable Securities, and any such
separate firm for the Company, its directors, respective officers and such
control Persons of the Company shall be designated in writing by the Company.
The Indemnifying Person 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, such Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this SECTION 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand and the Indemnified
Person on the other hand pursuant to the Purchase Agreement or from the offering
of the Registrable Securities pursuant to any Shelf Registration or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above
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but also the relative fault of the Indemnifying Person on the one hand and
the Indemnified Person on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and any Indemnified Holder on the
other shall be deemed to be in the same proportion as the total net proceeds
from the initial offering and sale of Convertible Debentures (before
deducting expenses) received by the Company bear to the total net proceeds
received by such Indemnified Holder from sales of Registrable Securities
giving rise to such obligations. The relative fault of the parties 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 such
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Each of the Company and the Initial Purchasers agrees that it would not
be just and equitable if contribution pursuant to this SECTION 6 were determined
by PRO RATA allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this SECTION 6, in no event shall any Holder
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holder would have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The remedies provided for in this SECTION 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this SECTION 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling any of the
Company and (iii) acceptance of and payment for any of the Registrable
Securities.
7. RULES 144 AND 144A
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, for so long as
any Registrable Securities remain outstanding, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder or
beneficial owner of Registrable Securities, make available such information
necessary to permit
-15-
sales pursuant to Rule 144A under the Securities Act. The Company further
covenants that, for so long as any Registrable Securities remain outstanding,
it will use its reasonable best efforts to take such further action as any
Holder of Registrable Securities 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(k) and Rule 144A 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 SEC. Notwithstanding
the foregoing, nothing in this SECTION 7 shall be deemed to require the
Company to register any of its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of the majority in Amount of Registrable Securities to be
included in such offering and be reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not entered and
will not enter into any agreement with respect to any of its securities that
will grant to any Person piggyback registration rights with respect to a
Registration Statement, except to the extent any existing right has heretofore
been waived.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and the Holders of not less than the majority in Amount
of Registrable Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair,
-16-
limit or compromise the rights of other Holders of Registrable Securities may
be given by Holders of at least a majority in Amount of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement.
(d) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities, at the most
current address of such Holder set forth on the records of the
registrar under the Indenture, in the case of Holders of Convertible
Notes, and the stock ledger of the Company, in the case of Holders of
Underlying Shares.
(2) if to the Initial Purchasers:
[Intentionally Omitted]
with copies to:
[Intentionally Omitted]
(3) if to the Company, at the address as follows:
Devon Energy Corporation
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Corporate Secretary
Facsimile No.: (000) 000-0000
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with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when the addressor
receives facsimile confirmation, if sent by facsimile.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN
MANHATTAN, NEW YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
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(j) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) THIRD PARTY BENEFICIARIES. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(l) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between either Initial Purchaser on
the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
[REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DEVON ENERGY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Confirmed and accepted as of
the date first above written:
[Intentionally Omitted]
[Intentionally Omitted]
By: [Intentionally Omitted]
By: /s/ [Intentionally Omitted]
-------------------------------------
Name:
Title:
