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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into this 17th day of June, 1996, by and between HS Resources,
Inc., a Delaware corporation (the "Company"); and Natural Gas Partners, L.P., a
Delaware limited partnership (the "Shareholder").
Background. The Company and Tide West Oil Company ("Tide West") are
parties to that certain Agreement and Plan of Merger (the "Merger Agreement")
pursuant to which the Company is issuing to the shareholders of Tide West,
including the Shareholder, shares of the Company's common stock, par value
$.001 ("Common Stock").
In consideration of the transactions effected pursuant to the Merger
Agreement and the mutual covenants and agreements herein set forth, the parties
to this Agreement hereby agree, subject to the terms and conditions hereinafter
set forth, as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms shall have the following respective meanings:
Commission: The Securities and Exchange Commission or any other
governmental authority at the time administering the Securities Act or the
Exchange Act.
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Exchange Act shall include a reference
to the comparable section, if any, of any such similar or successor federal
statute.
Person: A corporation, an association, a partnership, a limited
liability company, an individual, a joint venture, a trust or estate, an
unincorporated organization, or a government or any department or agency
thereof.
Registrable Securities: (a) Any shares of Common Stock issued to the
Shareholder under the terms of or in conjunction with the Merger Agreement, and
(b) any securities issued or issuable with respect to any Common Stock referred
to in the foregoing clause by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise; provided, however, that no
shares of Common Stock issued or issuable to the Shareholder prior to the
consummation of the transactions contemplated in the Merger Agreement shall be
considered Registrable Securities. As to any particular Registrable
Securities, once issued, such securities shall cease to be Registrable
Securities when (v) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (w) they shall become freely tradeable under Rule 144 under the
Securities Act without limitation as to volume, (x) they shall have been
transferred pursuant to Rule 144 or Rule 144A (or any successor provision)
under the Securities Act, (y) they shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further
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transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification under the Securities Act
or any similar state law then in force, or (z) they shall have ceased to be
outstanding.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Section 2 of this Agreement, including
without limitation all registration, filing and listing or NASDAQ fees, all
fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, all messenger and delivery
expenses, 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), premiums and other costs of policies of insurance,
if any, against liabilities arising out of the public offering of the
Registrable Securities being registered, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding underwriting discounts and commissions, transfer taxes, if any,
relating to the Registrable Securities being registered, and the fees and
disbursements of any counsel retained by the holder or holders of the
Registrable Securities being registered.
Securities Act: The Securities Act of 1933, as amended, or any similar
or successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar or successor federal statute.
Shelf Registration: As defined in Section 2.1 of this Agreement.
2. Registration under Securities Act
2.1 Shelf Registration. The Company will prepare and file a "shelf"
registration statement on an appropriate form pursuant to Rule 415 under the
Securities Act (or any similar rule that may be adopted by the Commission) with
respect to the Registrable Securities (together with any subsequent "shelf"
registration statement filed pursuant hereto, the "Shelf Registration"), and
will use its best efforts to have the Shelf Registration declared effective on
or before the first anniversary of the date hereof. The Company will pay all
Registration Expenses in connection with the Shelf Registration. The Shelf
Registration shall be kept continuously effective for a period ending not less
than three years after the date hereof and thereafter until such time as the
amount of Registrable Securities held by the Shareholder, together with the
Shareholder's affiliates, represents less than 10 percent of the then
outstanding Common Stock (the "Registration Period").
2.2 Registration on Request. (a) Request. Upon the written
request, made at any time during the period commencing on the first anniversary
of the date hereof, and continuing throughout the Registration Period, of the
holder or holders of not less than 50 percent of the Registrable Securities,
that the Company effect the registration under the Securities Act of all or
part of such holders' Registrable Securities (provided that the Registrable
Securities so requested to be registered represent not less than 50 percent of
the Registrable Securities), and specifying the intended method of disposition
thereof (including
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whether or not such disposition is intended to be effected as an underwritten
offering), the Company will, within 15 days after the date of such written
request, give written notice of such requested registration to all other
holders of Registrable Securities and thereupon the Company will use its best
efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company
has been so requested to register by the holder or holders submitting
the request, and
(ii) all other Registrable Securities which the
Company has been requested to register by the holder or holders
thereof by written request given to the Company within 15 days after
the giving of such written notice by the Company (which request shall
specify the intended method of disposition of such Registrable
Securities),
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered.
If any holder or holders of Registrable Securities requesting
registration under this Section 2.2(a) shall specify that the intended method
of disposition is to be an underwritten offering, such holder or holders shall
consult with the Company concerning the feasibility of effecting such
disposition as an underwritten offering. The Company shall use its best
efforts to effect such disposition as an underwritten offering unless, after
such consultation, the Company and such holder or holders shall agree not to
pursue such method of disposition.
(b) Registration of Other Securities. Whenever the
Company shall effect a registration pursuant to this Section 2.2 in connection
with an underwritten offering by one or more holders of Registrable Securities,
no securities other than Registrable Securities shall be included among the
securities covered by such registration unless (i) the managing underwriter of
such offering shall have advised each holder of Registrable Securities to be
covered by such registration that the inclusion of such other securities would
not adversely affect such offering, and (ii) the requirements of Section 2.2(g)
below are satisfied.
(c) Registration Statement Form. Registrations under
this Section 2.2 shall be on such appropriate registration form of the
Commission (i) for which the Company qualifies and which the Company's counsel
(after consultation with counsel for the holders of Registrable Securities)
deems appropriate, and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in the request for such registration. The Company agrees to include
in any such registration statement all information as to the holder or holders
of the Registrable Securities being registered which such holder or holders
shall reasonably request or which shall be required by applicable law.
(d) Expenses. Except as provided in Section 2.2(e)
below, the Company will pay all Registration Expenses incurred in connection
with any registration requested pursuant to this Section 2.2 which the Company
is obligated to effect, whether or not such registration is effected.
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(e) Effected Registration Statement. A registration
requested pursuant to this Section 2.2 shall be deemed to have been effected
(i) if a registration statement with respect thereto has become effective, (ii)
if the registration statement is withdrawn prior to its effectiveness pursuant
to the request of all of the holders of Registrable Securities who have
requested the inclusion in such registration statement of some or all of their
Registrable Securities, unless one or more of the holders of Registrable
Securities have elected to pay (and shall actually have paid) the Registration
Expenses relating thereto, (iii) if, after the registration statement has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason and such stop order, injunction or
other order or requirement results from any action or inaction of a holder or
holders of Registrable Securities, or (iv) if the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied or waived and such
conditions are not satisfied due to a failure by a holder of Registrable
Securities to satisfy a condition required to be satisfied by such holder
pursuant to the purchase agreement or underwriting agreement, unless one or
more of the holders of Registrable Securities have elected to pay (and shall
actually have paid) the Registration Expenses relating thereto.
(f) Selection of Underwriters. If a requested
registration pursuant to this Section 2.2 involves an underwritten offering,
the underwriter or underwriters thereof shall be selected by the holder or
holders of a majority of the Registrable Securities to be so registered,
subject to the approval of the Company, such approval not to be unreasonably
withheld.
(g) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2.2 involves an underwritten offering,
and the managing underwriter shall advise the Company in writing (with a copy
to each holder of Registrable Securities requesting registration) that, in its
opinion, the number of Registrable Securities and other securities of the
Company held by any other party requested to be included in such registration
exceeds the number which can be sold in (or during the time of) such offering
within a price range acceptable to the holder or holders of a majority (by
number of shares) of the Registrable Securities requested to be included in
such registration, the Company will include in such registration all
Registrable Securities requested to be included in such registration (unless
the provisions of the following sentence apply) and will include in such
registration other securities of the Company (including any securities proposed
to be issued and sold by the Company) held by any other party only to the
extent that the number of shares which the Company is advised can be so sold in
(or during the time of) such offering exceeds the number of Registrable
Securities to be included in such registration. If a requested registration
pursuant to this Section 2.2 involves an underwritten offering, and the
managing underwriter shall advise the Company in writing (with a copy to each
holder of Registrable Securities requesting registration) that, in its opinion,
the number of Registrable Securities requested to be included in such
registration exceeds the number which can be sold in (or during the time of)
such offering within a price range acceptable to the holder or holders of a
majority (by number of shares) of the Registrable Securities requested to be
included in such registration, the Company will include in such registration
only Registrable Securities requested to be included in such registration and
only to the extent of the number of shares which the Company is advised can be
so sold in (or during the time of) such
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offering; the Registrable Securities to be included in such registration shall
be taken up pro rata from the holder or holders of Registrable Securities
requesting such registration on the basis of the percentage of Registrable
Securities requested to be included in such registration.
(h) Limitation on Registrations. The Company's
obligations under this Section 2.2 shall be limited to effecting two
registrations, within the meaning of Section 2.2(e) above.
(i) Company's Right to Delay
Registration. Notwithstanding the foregoing provisions of this Section 2.2,
(i) the Company shall not be obligated to effect a registration pursuant to
this Section 2.2 within a period of 120 days after the effective date of a
registration statement previously filed as a result of a request pursuant to
this Section 2.2; (ii) if the Company has issued and sold to the public,
pursuant to a registration statement filed under the Securities Act, any of its
securities within three months prior to the date of its receipt of a request
for registration pursuant to this Section 2.2 and the Company's investment
banker has advised the Company in writing that the registration of Registrable
Securities would adversely affect the market for the Company's securities
covered by such registration statement, the Company shall have the right to
delay the requested registration of Registrable Securities for such period as
the investment banker may so advise, but no more than 120 days after the date
on which such request was made; and (iii) the Company shall be entitled to
postpone for a reasonable period of time the filing of any registration
statement otherwise required to be prepared and filed by it pursuant to this
Section 2.2 if, at the time it receives a request for registration pursuant to
this Section 2.2, the Company determines, in its reasonable judgment, that such
registration and offering would materially interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its affiliates and promptly gives the holders of
Registrable Securities written notice of such determination.
2.3 Incidental Registration. (a) Right to Include Registrable
Securities. If the Company at any time proposes to register any of its equity
securities under the Securities Act (other than by a registration on Form S-8
or Form S-4 or any successor or similar form and other than pursuant to Section
2.1 or 2.2 of this Agreement), whether or not for sale for its own account,
each such time it will give prompt written notice to all holders of Registrable
Securities of its intention to do so, of the intended method of disposition,
and of such holders' rights under this Section 2.3. Upon the written request
of any such holder made within 15 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such holder and the intended method of disposition thereof, which can be
by underwritten offering, even if such was not intended by the Company), the
Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by a holder or holders of Registrable Securities, to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason, after consultation with the holder or holders
of Registrable Securities which have requested inclusion in such registration,
not to register or to delay registration of such securities, the
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Company may, at its election, give written notice of such determination to each
such holder of Registrable Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith),
without prejudice, however, to the rights of any holder or holders of
Registrable Securities entitled to do so to request that such registration be
effected as a registration under Section 2.2 above, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other securities. No registration effected under this Section 2.3 shall
relieve the Company of its obligation to effect any registration under Section
2.1 above or upon request under Section 2.2 above. The Company will pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 2.3.
(b) Priority in Incidental Registrations. If (i) a
registration pursuant to this Section 2.3 involves an underwritten offering of
the securities so being registered, whether or not for sale for the account of
the Company, to be distributed by or through one or more underwriters under
underwriting terms appropriate for such a transaction, (ii) the Registrable
Securities so requested to be registered for sale for the account of a holder
or holders of Registrable Securities are not also to be included in such
underwritten offering (because the Company has not been requested so to include
such Registrable Securities pursuant to Section 2.5(b) below), and (iii) the
managing underwriter of such underwritten offering shall inform the Company and
the holder or holders of Registrable Securities requesting such registration in
writing of its belief that the number of securities requested to be included in
such registration exceeds the number which can be sold in (or during the time
of) such offering, then the Company shall include in such registration only
securities proposed to be sold by the Company for its own account, Registrable
Securities and securities having registration rights that are pari passu to
those relating to the Registrable Securities (the "Pari Passu Securities"). If
the registration was initiated by the Company without a registration having
been requested, under Section 2.2 above, within the prior 120-day period, the
Company may include all securities proposed by the Company to be sold for its
own account and may decrease the number of Registrable Securities and Pari
Passu Securities so proposed to be sold and so requested to be included in such
registration (pro rata on the basis of the percentage of the securities of the
Company, by number of shares, requested to be included in the registration by
the holder or holders of such Registrable Securities and Pari Passu Securities)
to the extent necessary to reduce the number of securities to be included in
the registration to the level recommended by the managing underwriter. If,
however, the registration was initiated by the Company within 120 days of a
requested registration and is in response thereto or in lieu thereof, then the
Company shall include in the registration all Registrable Securities requested
to be included in such registration and shall decrease the number of securities
proposed to be sold by the Company and to be included in such registration to
the extent necessary to reduce the number of securities to be included in the
registration to the level recommended by the managing underwriter.
2.4 Registration Procedures. Whenever the Company is required
to effect, or to use its best efforts to effect, the registration of any
Registrable Securities under the Securities
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Act as provided in Section 2.1, 2.2 or 2.3 above, the Company will, as
expeditiously as possible:
(a) with respect to the registration of Registrable
Securities under the Securities Act as provided in Section 2.2 or 2.3
above, prepare and (as soon thereafter as possible or in any event no
later than 90 days after the end of the period within which requests
for registration may be given to the Company or such longer period as
the Company shall in good faith require to produce the financial
statements required in connection with such registration) file with
the Commission the requisite registration statement to effect such
registration and thereafter use its best efforts to cause such
registration statement to become effective; provided, however, that
the Company may discontinue any registration of its securities which
are not Registrable Securities at any time prior to the effective date
of the registration statement relating thereto;
(b) prepare and file with the Commission such
amendments and supplements to the requisite registration statement and
the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement until such time
as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as
set forth in such registration statement, but in no event for a period
which would exceed 180 days from the date on which the registration
statement became effective; provided, however, the Shelf Registration
shall be kept effective for the time period set forth in Section 2.1
above;
(c) furnish to each seller of Registrable
Securities covered by such registration statement such number of
conformed copies of such registration statement and of each amendment
and supplement thereto (in each case including all exhibits), 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, in conformity with the requirements of the Securities
Act, and such other documents, as such seller may reasonably request;
(d) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of
such jurisdictions as each seller thereof shall reasonably request, 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 seller
to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such
purpose be required to either qualify generally to do business as a
foreign corporation, or subject itself to taxation in any jurisdiction
wherein it would not, but for the requirements of this subparagraph
(d), be obligated to be so qualified or subject to taxation or to
consent to general service of process in any such
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jurisdiction or to any material restrictions on the conduct of its
business, or any restrictions on payments to any of its shareholders;
(e) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities;
(f) furnish to each seller of Registrable
Securities a signed counterpart, addressed to such seller (and the
underwriters, if any) of (i) an opinion of counsel for the Company,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the date
of the closing under the underwriting agreement) reasonably
satisfactory in form and substance to such seller, and (ii) a "comfort
letter," dated the effective date of such registration statement (and,
if such registration includes an underwritten public offering, dated
the date of the closing under the underwriting agreement), signed by
the independent public accountants who have audited the Company's
financial statements included in such registration statement, in each
case 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 underwriters in underwritten public offerings of securities
and, in the case of the accountants' letter, such other financial
matters, and, in the case of the legal opinion, such other legal
matters, as such seller or such holder (or the underwriters, if any)
may reasonably request;
(g) notify each seller of Registrable Securities
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 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 the light of the
circumstances under which they were made, and at the request of any
such seller or holder promptly prepare and furnish to such seller or
holder 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 the light
of the circumstances under which they were made;
(h) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable,
an historical earnings statement covering the period of at least 12
months, but not more than 18 months, beginning with the first month of
the first full fiscal quarter after the effective date of such
registration statement, which
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earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act, and will furnish to each such seller at least five
business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall not
file any thereof to which any such seller shall have reasonably
objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the
Securities Act or the rules or regulations thereunder;
(i) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such registration statement; and
(j) use its best efforts to list all Registrable
Securities covered by such registration statement on any securities
exchange on which any of the Common Stock is then listed.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities as
the Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 2.4(g) above, (i) such holder will forthwith discontinue such holder's
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such holder's receipt of the
copies of the supplemented or amended prospectus contemplated by said Section
2.4(g), (ii) such holder will promptly deliver copies of such supplemented or
amended prospectus to each purchaser or potential purchaser to whom such holder
had delivered the initial prospectus, and (iii) if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
Each holder of Registrable Securities further agrees that, prior to
any disposition of Registrable Securities pursuant to the Shelf Registration,
such holder shall give written notice of the desired disposition to the
Company, including the anticipated date thereof, and such holder shall not
effect such disposition until such holder either (i) has received from the
Company copies of a supplemented or amended prospectus as contemplated in
Section 2.4(g) above, or (ii) has been advised in writing by the Company that
the use of the applicable prospectus is appropriate and has received copies of
any previous amendments or supplements thereto.
2.5 Underwritten Offerings. (a) Requested Underwritten
Offerings. If an offering requested by holders of Registrable Securities
pursuant to Section 2.2 above is to be underwritten, the Company will enter
into an underwriting agreement with the underwriters for such offering, such
agreement to be satisfactory in substance and form to the Company, each such
holder and the underwriters and to contain such representations and warranties
by
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the Company and such other terms as are generally prevailing in agreements of
this type. The holder or holders of Registrable Securities requesting
registration will reasonably cooperate with the Company in the negotiation of
the underwriting agreement, provided that nothing herein contained shall
diminish the foregoing obligations of the Company. The holder or holders of
Registrable Securities to be distributed by such underwriters shall be parties
to such underwriting agreement and any necessary or appropriate custody
agreements, shall execute appropriate powers of attorney, and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holder or
holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holder or holders
of Registrable Securities. Any such holder of Registrable Securities shall not
be required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation required
by law.
(b) Incidental Underwritten Offerings. If the Company
at any time proposes to register any of its securities under the Securities
Act, as contemplated by Section 2.3 above, and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any holder of Registrable Securities as provided in said Section
2.3 and subject to the provisions of this Section 2.5(b), arrange for such
underwriters to include all of the Registrable Securities to be offered and
sold by such holder among the securities to be distributed by such
underwriters. In the event that the managing underwriter of any underwritten
offering shall inform the Company and the holder or holders of Registrable
Securities requesting the inclusion of their securities in such offering in
writing of its belief that the number of securities requested to be sold in
such offering exceeds the number which can be sold in such offering, then the
Company shall include in such offering only securities proposed to be sold by
the Company for its own account and Registrable Securities and Pari Passu
Securities. If the registration was initiated by the Company without
registration having been requested, under Section 2.2 above, within the prior
120-day period, the Company may include in such offering all securities
proposed by the Company to be sold for its own account and may decrease the
number of Registrable Securities and Pari Passu Securities so proposed to be
sold and so requested to be included in such offering (pro rata on the basis of
the percentage of the securities, by number of shares, of the Company requested
to be included in the offering by the holder or holders of such Registrable
Securities and Pari Passu Securities) to the extent necessary to reduce the
number of securities to be included in such offering to the level recommended
by the managing underwriter. If, however, the registration was initiated by
the Company within 120 days of a requested registration and is in response
thereto or in lieu thereof, then the Company shall include in the registration
all Registrable Securities requested to be included in such registration and
shall decrease the number of securities proposed to be sold by the Company and
to be included in such registration to the extent necessary to reduce the
number of securities to be included in the registration to the level
recommended by the managing underwriter. The holder or holders of Registrable
Securities to be distributed by such underwriters shall be parties to the
underwriting agreement between the Company and such
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underwriters and any necessary or appropriate custody agreements, shall execute
appropriate powers of attorney, and may, at their option, require that any or
all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of such holder or holders of Registrable Securities
and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such holder or holders of Registrable Securities. Any such
holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
2.6 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 holder or holders of
Registrable Securities registered under such registration statement, their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment or supplement thereto, and will give each of them such 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' and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.7 Indemnification. (a) Indemnification by the Company. In
the event of any registration of any securities of the Company under the
Securities Act, the Company will, and hereby does, indemnify and hold harmless
the seller of any Registrable Securities covered by such registration
statement, its directors, officers, representatives and agents, each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such seller or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller or any
such director, officer, representative, agent, underwriter or controlling
Person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (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 such securities were registered under
the Securities Act, any 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 seller and each such director, officer,
representative, agent, underwriter and controlling Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense 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
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prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such seller specifically for use in the preparation thereof; and
provided further, that the Company shall not be liable to any Person who
participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within
the meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, representative, agent, underwriter or
controlling Person and shall survive the transfer of such securities by such
seller.
(b) Indemnification by the Sellers. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2.4 above, that the Company
shall have received an undertaking reasonably satisfactory to it from the
prospective seller of such securities, to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 2.7(a) above) the
Company, each director, officer, representative and agent of the Company and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such seller specifically for
use in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. 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, representative,
agent, or controlling Person and shall survive the transfer of such securities
by such seller.
(c) Notices of Claims and Procedures. Promptly after
receipt by an indemnified Person of notice of the commencement of any action or
proceeding involving a claim referred to in Section 2.7(a) or (b) above, such
indemnified Person will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified Person to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under Section 2.7(a) or (b) above, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified Person, unless in such
indemnified Person's reasonable judgment a conflict of interest between such
indemnified Person and such indemnifying party may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory
to such indemnified Person, and
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after notice from the indemnifying party to such indemnified Person of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified Person for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. If, in such indemnified Person's reasonable
judgment a conflict of interest does or may exist in respect of such claim, the
indemnified Person or Persons shall have the right to select separate counsel
to participate in the defense of such action on behalf of such indemnified
Person or Persons, in which case the indemnifying party shall bear the costs of
such defense. No indemnifying party shall, without the consent of the
indemnified Person, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified Person of a release from all
liability with respect to such claim or litigation and otherwise in form and
substance satisfactory to the indemnified Person. The indemnifying party shall
not be required to indemnify any indemnified Person against any settlement or
judgment which is consented to by an indemnified Person without the consent of
the indemnifying party.
(d) Other Indemnification. Indemnification similar to
that specified in Sections 2.7(a), (b) and (c) above (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation of any governmental
authority other than the Securities Act.
(e) Indemnification Payments. The indemnification
required by this Section 2.7 shall be made by prompt payments of the amounts
thereof during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred.
(f) Contribution. If any of the indemnification
provisions provided for in this Section 2.7 are determined to be unenforceable
or unavailable to an indemnified Person in respect of any claim or action, then
each indemnifying party, in lieu of indemnifying such indemnified Person, shall
contribute to the amount paid or payable by such indemnified Person as a result
of such claims in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party and the indemnified Person
from the registration statement, but also the relative fault of the indemnified
Person and the indemnifying party in connection with the statements or
omissions which resulted in such claim or action as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and the
indemnified Person 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 by the indemnified Person and their
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the claims referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such Person in connection with
investigating or defending any action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of the Securities Act) shall be entitled
to contribution from any Person who is not guilty of such fraudulent
misrepresentation.
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2.8 Adjustments Affecting Registrable Securities. The Company
will not effect or permit to occur any combination or subdivision of shares
which would materially adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in any
registration of its securities contemplated by this Section 2 or the
marketability of such Registrable Securities under any such registration.
3. Rules 144 and 144A. The Company represents and warrants to
the Shareholder that it has filed registration statements pursuant to the
requirements of Section 12 of the Exchange Act and/or pursuant to the
requirements of the Securities Act, and has filed the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder. The Company will 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) Rules 144 and 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 Commission. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
4. Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the holder
or holders of a majority of the Registrable Securities at the time outstanding;
provided, however, if such amendment, action or omission to act would adversely
affect the right of any holder of Registrable Securities, no consent thereto
shall be effective without the concurrence of each holder who would be
adversely affected thereby. Each holder of Registrable Securities at the time
or thereafter outstanding shall be bound by a consent authorized by this
Section 4, whether or not such Registrable Securities shall have been marked to
indicate such consent.
5. Notices. All notices and other communications required or
permitted hereunder shall be in writing, and shall be deemed to have been
delivered on the date delivered by hand or transmitted by telegram, facsimile
or by similar means, on the first day following the day when sent by recognized
courier or overnight delivery service (fees prepaid), or on the third day
following the day when deposited in the U.S. mail, registered or certified
(postage prepaid), addressed (a) if to the Shareholder, at the address set
forth in the stock records of the Company, or such address as the Shareholder
shall have furnished to the Company in writing, or (b) if to the Company, to HS
Resources, Inc., Xxx Xxxxxxxx Xxxxx, 00xx Xx., Xxx Xxxxxxxxx, XX 00000, Attn:
Chief Executive Officer, telephone: (000) 000-0000; facsimile: (415) 433-
5811, with a copy to HS Resources, Inc., 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, XX
00000, Attn: General Counsel, telephone: (000) 000-0000, facsimile: (303) 296-
3601, or such other address, or to the attention of such other Person or
Persons, as the Company shall have furnished to each holder of Registrable
Securities at the time outstanding.
6. 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 assigns. In
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addition, and whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the Shareholder shall
also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities who has executed a copy of this Agreement or otherwise
indicated its agreement to be bound hereby, subject to the provisions
respecting the minimum numbers or percentages of shares of Registrable
Securities required in order to be entitled to certain rights, or take certain
actions, contained herein.
7. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
8. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Delaware, without regard to principles of
conflicts of laws.
9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
10. Other Registration Rights. The Company shall not at any
time grant registration rights to any holder of shares of Common Stock which
are more favorable to such holder, in terms of priority in registration, than
the rights set forth in this Agreement.
11. Legend. The stock certificate representing Registrable
Securities shall have the following legend:
"The shares represented by this Certificate are subject to a
Registration Rights Agreement dated June 17, 1996, between HS
Resources, Inc. (the "Company") and Natural Gas Partners, L.P. A copy
of such agreement is on file at the Company's principal place of
business and a copy will be provided to the holder hereof at no cost
upon written request to the corporate secretary of the Company."
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, or have caused this Agreement to be executed and delivered by their
respective duly authorized officers, on the date first above written.
"COMPANY" "Shareholder"
HS Resources, Inc. Natural Gas Partners, L.P.
By: G.F.W. Energy, L.P.
its General Partner
By: /s/ XXXXXXXX X. XXXXXX By: /s/ X. XXXXXX XXXXXXX
-------------------------------- --------------------------------
Xxxxxxxx X. Xxxxxx X. Xxxxxx Xxxxxxx
Chief Executive Officer General Partner
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