1
EXHIBIT 3
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is entered into as of March 5, 2001, by and among Xxxxxxx
Exploration Company, a Delaware corporation (the "COMPANY"), and the parties
listed on SCHEDULE A hereto.
RECITALS
WHEREAS, pursuant to that certain Registration Rights Agreement dated
as of November 1, 2000 (the "ORIGINAL AGREEMENT"), by and among the Company and
DLJMB Funding III, Inc., a Delaware corporation and DLJ ESC II, L.P., a Delaware
Limited Partnership (the "INITIAL INVESTORS"), the Company provided certain
registration rights to the Initial Investors regarding shares of the Company's
common stock issuable upon conversion of warrants issued by the Company to the
Initial Investors;
WHEREAS, each of the Initial Investors and DLJ Merchant Banking
Partners III, L.P., a Delaware Limited Partnership, and DLJ Offshore Partners
III, C.V., a Netherlands Antilles Limited Partnership (collectively hereinafter
referred to as the "INVESTORS"), and the Company are parties to that certain
Securities Purchase Agreement dated as of March 5, 2001 (the "NEW SECURITIES
PURCHASE AGREEMENT");
WHEREAS, each of the Investors is a party to a certain Warrant
Certificate (the "NEW WARRANT Certificate") dated as of March 5, 2001, by and
between the Company and each of such Investors;
WHEREAS, the New Warrant Certificates were executed and delivered in
connection with the consummation of transactions contemplated by the new
Securities Purchase Agreement;
WHEREAS, pursuant to the New Warrant Certificates, each of the
Investors has been issued a warrant (the "NEW WARRANT") to purchase shares of
the Company's common stock, par value $.01 per share; and
WHEREAS, to induce the Investors to enter into the New Warrant
Certificates and the new Securities Purchase Agreement, the Company has agreed
to provide registration rights under the Original Agreement with respect to the
shares issuable upon exercise of the New Warrants.
NOW, THEREFORE, for and in consideration of the foregoing, and other
good and valuable consideration, the sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
Section 1. Amendments to the Original Agreement.
(a) The "RECITALS" section of the Original Agreement is amended by deleting such
section entirely and replacing it with the following:
" WHEREAS, each of DLJMB Funding III, Inc. ("MB") and DLJ ESC II,
L.P. ("ESC") (MB and ESC are sometimes hereinafter referred to collectively
as the "INITIAL INVESTORS") is a party to a certain Warrant Certificate
(the "WARRANT CERTIFICATE") dated as of November 1, 2000, by and between
the Company and such Investor, and each of the Initial Investors and DLJ
Merchant Banking Partners III, L.P. ("MBP") and DLJ Offshore Partners
2
III, C.V. ("OFFSHORE") (the Initial Investors, MBP and Offshore are
sometimes hereinafter referred to collectively as the "INVESTORS") is a
party to a certain Warrant Certificate (the "NEW WARRANT CERTIFICATE")
dated as of March 5, 2001, by and between the Company and such Investor;
WHEREAS, the Warrant Certificates were executed and delivered to the
Initial Investors in connection with the consummation of transactions
contemplated by that certain Securities Purchase Agreement dated as of
November 1, 2000, by and among the Company and the Initial Investors, and
the New Warrant Certificates were executed and delivered in connection with
the consummation of transactions contemplated by that certain Securities
Purchase Agreement dated as of March 5, 2001 by and among the Company and
the Investors;
WHEREAS, pursuant to the Warrant Certificates, each Holder (as
defined below) has been issued a warrant (the "WARRANT") to purchase shares
of the Company's common stock, par value $.01 per share (the "COMPANY'S
COMMON STOCK"), and pursuant to the New Warrant Certificates, each Holder
(as defined below) has been issued a warrant (the "NEW WARRANT") to
purchase shares of the Company's Common Stock;
WHEREAS, to induce the Initial Investors to enter into the Warrant
Certificates, and the Investors to enter into the New Warrant Certificates
and the Securities Purchase Agreements described above, the Company has
agreed to grant the registration and other rights contained in this
Agreement;"
(b) The definition of Registrable Securities in Section 1.(d) of the Original
Agreement is amended by deleting such Section 1.(d) entirely and replacing it
with the following:
" (d) "REGISTRABLE SECURITIES" means (i) the Common Stock of the
Company issuable or issued upon exercise of the Warrants or the New
Warrants and (ii) any Common Stock of the Company issued as (or issuable
upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, such Warrants, New Warrants or Common
Stock, excluding in all cases, however, any Registrable Securities sold by
a person in a transaction in which its rights under this Agreement are not
assigned; and"
(c) Schedule A to the Original Agreement is amended by deleting such Schedule A
entirely and replacing it with Schedule A to this Agreement.
Section 2. No Other Changes. Except as explicitly amended by this
Amendment, the terms, conditions, rights and obligations under the Original
Agreement shall remain in full force and effect.
Section 3. Counterparts. This Amendment may be executed by the parties
hereto in any number of counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same agreement.
2
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth above.
XXXXXXX EXPLORATION COMPANY
By:
---------------------------------------
Its: Vice President
Address:
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
DLJMB FUNDING III, INC.
------------------------------------------
Name:
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Xxx Xxxxx
Telefax: 000-000-0000
3
4
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:
---------------------------------------
Name:
Title:
Address:
c/o DLJ LBO Plans Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telefax: 000-000-0000
DLJ Merchant Banking
Partners III, L.P.
By: DLJ Merchant Banking III, Inc.
Managing General Partner
-------------------------------------------
Name:
Title:
Address:
DLJ Merchant Banking Partners III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Xxx Xxxxx
Telefax: 000-000-0000
DLJ Offshore Partners III, C.V.
By: DLJ Merchant Banking III, Inc.
Managing General Partner
By:
---------------------------------------
Name:
Title:
Address:
c/o DLJ Offshore Management N.V.
Xxxx X. Xxxxxxxxxx 00
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx, Antilles
Fax: 000-000-000-0000
4
5
SCHEDULE A
TO REGISTRATION RIGHTS AGREEMENT
Number of Shares
Holder Name November 1, 2000 March 5, 2001
----------------------------------- -------------------------------
DLJ MB Funding III, Inc., 6,036,667 141,869
a Delaware corporation
DLJ ESC II, LP, 630,000 371,789
a Delaware limited partnership
DLJ Merchant Banking Partners III, L.P. -0- 1,527,154
DLJ Offshore Partners III, C.V -0- 64,451
--------- ---------
TOTAL 6,666,667 2,105,263
5
