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EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated December 31, 1996 by and between
Devon Energy Corporation, an Oklahoma corporation (the "Company"), and
Xxxx-XxXxx Corporation, a Delaware corporation ("Security Holder").
W I T N E S S E T H:
WHEREAS, the Company and Security Holder have entered into an Agreement and
Plan of Merger dated as of October 17, 1996 (the "Merger Agreement") which
provides, among other things, for the execution of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and in the Merger Agreement the parties hereto agree as follows:
Section 1. Definitions. The terms defined in this Section, whenever used in
this Agreement, shall, unless the context otherwise requires, have the
respective meanings hereinafter specified. Terms not defined in this Agreement,
and defined in the Merger Agreement have the meanings assigned them in the
Merger Agreement.
"Agreement" shall mean this Registration Rights Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall mean the Company's authorized Common Stock, par value
$.10 per share.
"Company" shall mean Devon Energy Corporation, an Oklahoma corporation, and
any successor corporation by merger, consolidation or otherwise and any parent
corporation resulting from the merger or consolidation of the Company with or
into a subsidiary of another corporation.
"Evergreen Registration Statement" shall mean a Registration Statement
filed pursuant to Rule 415, or any successor rule under the Securities Act,
relating to an offering on a continuous or delayed basis and which may, in lieu
of filing a post-effective amendment that (x) includes any prospectus required
by Section 10(a)(3) of the Securities Act or (y) reflects facts or events
representing a material or fundamental change in the information set forth in
the Registration Statement, be amended by the incorporation by reference of
information required to be included in (x) or (y) above contained in periodic
reports filed pursuant to Section 13 or 15 (d) of the Exchange Act in the
Registration Statement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Exchangeable Security" shall mean a security of any type, including but
not limited to debt, equity, warrants or other rights, issued by Security Holder
at any time after the second anniversary of this Agreement and which includes or
represents the right to acquire Registrable Securities from Security Holder upon
exchange, conversion or exercise thereof; provided that such security shall
confer on Security Holder the right to suspend the right of the holder of such
security to exchange, convert or exercise such security to the extent necessary
for Security Holder to comply with the terms of Section 2.D. of this Agreement;
and provided further that the right to exchange or convert into, or exercise
for, Registrable Securities shall be limited to a period of seven years
commencing upon issuance of the Exchangeable Security.
"Person" shall mean an individual, a corporation, a partnership, a trust,
an unincorporated organization or a government or any agency or political
subdivision thereof.
"Public Offering" shall mean a firm commitment underwritten public offering
pursuant to a registration statement under the Securities Act.
"Registrable Securities" shall have the meaning subscribed thereto in
Section 2.A.
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"Registration" shall mean the registration under the Securities Act of
Registrable Securities pursuant to either Section 2.A hereof or 2.B hereof.
"Registration Statement" shall mean a registration statement filed under
the Securities Act or a similar document filed pursuant to any other statute
then in effect corresponding to the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"Security Holder" shall mean Xxxx-XxXxx Corporation, a Delaware
corporation, its permitted assigns, or any affiliate thereof holding Common
Stock or any successor corporation to any of the foregoing by merger or
consolidation or otherwise.
Section 2. Registration Rights.
A. Required Registration. If the Company shall receive a written request
from Security Holder requesting that the Company file a Registration Statement
relating to a Public Offering of shares of Common Stock owned by Security Holder
("Registrable Securities"), the Company will as promptly as practicable prepare
and file a Registration Statement and use its best efforts to cause the
Registration Statement to become effective; subject, however, to the following
provisions:
(1) the Company shall be required to file no more than three (3)
Registration Statements on behalf of Security Holder pursuant to this
Section 2.A;
(2) the Company shall not be obligated to file a requested
Registration:
(i) in the event that the aggregate number of Registrable
Securities to be included in such requested Registration is less than
five percent (5%) of the issued and outstanding Common Stock;
(ii) from the time it gives notice to Security Holder, provided
such notice is given prior to time of receipt by Devon of Security
Holder's request to file a Registration Statement, that it is preparing
to file a Registration Statement other than for the account of Security
Holder until 60 days after the Registration Statement has been declared
effective by the SEC; provided, the Company shall use its best efforts
to cause such Registration Statement to be declared effective as
promptly as practicable; and, provided further, the obligation to file a
Registration Statement on behalf of Security Holder shall be reinstated
if the Company does not file a Registration Statement within 30 days
after giving the notice referred to above; or
(iii) for a period from the time the Company gives Security Holder
notice, provided such notice is given prior to time of receipt by Devon
of Security Holder's request to file a Registration Statement, that the
Company is conducting negotiations for a material business combination
or that there is a material development or event pending which has not
yet been publicly disclosed and as to which the Company believes
disclosure will be prejudicial to the Company until the earlier of (a)
120 days after the notice with respect to a material business
combination or 90 days after the notice with respect to a material
development or event; (b) the public announcement of the combination,
development or event referred to above; or (c) the time the Company
gives Security Holder notice that suspension of its obligation is no
longer required.
(3) a Registration Statement filed pursuant to a request of Security
Holder shall first include all Registrable Securities requested to be
included by Security Holder and, only after such inclusion, may, include
securities of the Company being sold for the account of the Company or
other security holders; provided, however, that securities to be offered on
behalf of the Company or such other security holders will be included in
such Registration Statement only to the extent that, in the reasonable
opinion of the managing underwriter for the Public Offering of Registrable
Securities on behalf of Security Holder, such inclusion will not materially
adversely affect the distribution of Registrable Securities on behalf of
Security Holder;
(4) the selection of an underwriter for a Public Offering of
Registrable Securities by Security Holder shall be subject to the approval
of the Company, which shall not be unreasonably withheld; and
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(5) for purposes of paragraph (1) of this Subsection A, if a requested
Registration Statement is filed and the Company otherwise complies with its
obligations hereunder, but the Registration Statement is withdrawn by
Security Holder due to a delay in the offering requested by the Company,
then no requested Registration Statement shall be deemed to have been
filed.
B. Incidental/"Piggy-back" Registration. If the Company at any time
proposes to file a Registration Statement (other than a Registration Statement
filed pursuant to Subsection A of this Section) under the Securities Act
relating to a Public Offering of Common Stock to be sold for cash that would
permit the registration of Registrable Securities, it will give Security Holder
as much advance notice, in writing, as is reasonably practicable under the
circumstances, but in any event not less than 5 days, before the filing with the
Commission of such Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered. The
notice shall offer to include in such filing such amount of Registrable
Securities as Security Holder may request. If Security Holder wishes to have
Registrable Securities registered pursuant to this Subsection B, it shall advise
the Company in writing within 20 days after the date of receipt of such offer
from the Company (or such shorter period, but in any event not less than 5 days,
as the Company shall specify in its notice to Security Holder), setting forth
the amount of Registrable Securities for which Registration is requested. If the
managing underwriter of the proposed Public Offering of Common Stock by the
Company shall advise the Company in writing that, in the reasonable opinion of
the managing underwriter, the distribution of the Registrable Securities
requested by Security Holder to be included in the Registration Statement
concurrently with securities being registered for sale by the Company would
materially adversely affect the distribution of such securities by the Company,
then the Company shall so advise the Security Holder and the number of
securities that are entitled to be included in the registration and underwriting
shall be allocated first to the Company and then pro rata among the shareholders
(including Security Holder) whose shares are to be included in such Registration
Statement. If any Person does not agree to the terms of any such underwriting,
such Person shall be excluded therefrom by written notice from the Company or
the underwriter.
Any Registrable Securities excluded or withdrawn from such underwriting
shall nevertheless be included in any Registration Statement (but not the
underwriting) filed pursuant to this Subsection B during the first two years
after the date of this Agreement in an amount not to exceed 5% of the issued and
outstanding Common Stock; provided, the Registrable Securities so included may
be offered and sold only during a 90 day period commencing on the last day of
any period during which "Affiliates" (as that term is defined in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended) of the Company have agreed not to dispose of Common Stock in accordance
with the underwriting agreement.
Any obligation of the Company to effect a Registration pursuant to this
Subsection B shall be conditioned upon Security Holder entering into an
underwriting agreement with the Company and the managing underwriters of the
registered offering of the type described in paragraph (10) of Subsection C.
C. Registration Procedures. If the Company is required by the provisions of
Subsections A or B of this Section 2 to effect the Registration of any of the
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(1) Prepare and file with the Commission a Registration Statement with
respect to such securities and use its best efforts to cause such
Registration Statement to become and, subject to paragraph (2) of this
Subsection C, remain effective.
(2) Keep such Registration effective, and the prospectus used in
connection therewith, current for a period of ninety (90) days or until the
Security Holder has completed the distribution described in the
Registration Statement relating thereto, whichever first occurs (the
"Selling Period"); provided, however, that (a) the Selling Period shall be
extended for a period of time equal to any period that Security Holder
refrains from selling any securities included in such registration (i)
pursuant to an agreement between Security Holder and an underwriter of
Common Stock at the request of the Company in order to facilitate the
Company's offering thereunder or (ii) pursuant to paragraph 8 of this
Subsection C and in the case of a registration which includes Registrable
Securities in accordance with
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the penultimate paragraph in Subsection B of this Section 2, the Selling
Period shall be extended for the period contemplated thereby; provided that
Rule 415, or any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis; and provided further that
applicable rules under the Securities Act governing the obligation to file
a post-effective amendment permit, in lieu of filing a post-effective
amendment that (i) includes any prospectus required by Section 10(a)(3) of
the Securities Act or (ii) reflects facts or events representing a material
or fundamental change in the information set forth in the Registration
Statement, the incorporation by reference of information required to be
included in (i) and (ii) above to be contained in periodic reports filed
pursuant to Section 13 or 15(d) of the Exchange Act in the Registration
Statement.
(3) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective and such prospectus current in compliance with Section
10 of the Securities Act, and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Common
Stock covered by such Registration Statement whenever Security Holder shall
desire to sell or otherwise dispose of the same, and provide Security
Holder with copies of any correspondence with the Commission, or copies of
memoranda relating to oral communications with the Commission, with respect
to any request by the Commission for any amendment of or supplement to the
Registration Statement or the prospectus included therein or for additional
information; provided, however, that the Company shall have no obligation
under this paragraph (3) after the period required by paragraph (2) of this
Subsection C has lapsed.
(4) Furnish to Security Holder such number of 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
included in such Registration Statement (including each preliminary
prospectus, summary prospectus and prospectus supplement), in conformity
with the requirements of the Securities Act, and such other documents, as
Security Holder may reasonably require in order to facilitate the public
offering, sale or other disposition of the Registrable Securities owned by
Security Holder.
(5) Use its best efforts to register or qualify the Common Stock
covered by such Registration Statement under such other securities or blue
sky laws of such jurisdictions as Security Holder shall reasonably request
(excluding however any jurisdiction in which the filing would subject the
Company to additional tax liability, and any jurisdiction in which the
Company would be required to execute a general consent to service of
process in effecting such Registration or qualification which consent would
not be required but for this paragraph (5)), and do such other acts and
things as may be required to enable Security Holder to consummate the
public sale or other disposition in such jurisdictions of the Registrable
Securities owned by Security Holder.
(6) 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 earnings statement covering
the period of at least 12 months, but not more than 18 months, beginning
with the first month after the effective date of the Registration
Statement, which earnings statement shall ratify the provisions of Section
11(a) of the Securities Act.
(7) Immediately notify Security Holder at any time when a prospectus
is required to be delivered under the Securities Act within the Selling
Period referred to in paragraph (2) of this Subsection C, of the Company
becoming aware that the prospectus included in the Registration Statement,
or as such prospectus may be amended or supplemented, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading in light of the circumstances then existing, and at the
request of Security Holder to promptly prepare and furnish to Security
Holder a number of copies of an amended or supplemental prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
Registrable 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 in order to make the statements therein not
misleading in the light of the circumstances then existing. In the event
the Company shall give any such
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notice, Security Holder shall immediately suspend use of the prospectus and
the Selling Period shall be extended by the number of days during the
period from and including the date of the giving of such notice to and
including the date when Security Holder shall have received the copies of
such supplemented or amended prospectus.
(8) In the event that, in the judgment of the Company, it is advisable
to suspend use by Security Holder of a prospectus relating to an offering
of Registrable Securities, other than a Public Offering, because the
Company is conducting negotiations for a material business combination or
due to pending material developments or events that have not yet been
publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver notice in
writing to the effect of the foregoing and, upon receipt of such notice,
the Security Holder shall not use the prospectus, and the Selling Period
shall cease to run or will not commence, until such Security Holder has
received copies of the supplemented or amended prospectus provided for in
paragraph 3 of this Section C, or until it is advised in writing by the
Company that the prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such prospectus; provided that the duration of
such suspension shall not exceed 30 days. The Company will use its best
efforts to ensure that the use of the prospectus may be resumed, and the
Selling Period will commence, as promptly as is practicable and, in any
event, promptly after the earlier of (x) public disclosure of such material
business combination or pending material development or event sufficient to
permit an affiliate of the Company to sell Common Stock or (y) in the
judgment of the Company, public disclosure of such material business
combination or material development or event would not be prejudicial to
the Company.
(9) Use its best efforts to list such Registrable Securities on the
primary securities exchange or other trading market on which the Common
Stock is then listed, if such Registrable Securities are not already so
listed and if such listing is then permitted under the rules of such
exchange or other trading market, and to provide a transfer agent and
registrar for such Registrable Securities covered by such Registration
Statement not later than the effective date of such Registration Statement.
(10) Enter into such agreements (including an underwriting agreement
in customary form and containing customary provisions relating to legal
opinions and accountants' letters and customary representations and
warranties and customary provisions for mutual indemnification and
contribution between the Company and the underwriters for Security Holder)
and take such other actions as Security Holder may reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities.
(11) Make available for inspection by Security Holder, by any
underwriter participating in any disposition to be effected pursuant to
such Registration Statement and by any attorney, accountant or other agent
retained by Security Holder or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information requested by Security Holder, such
underwriter, attorney, accountant or agent, as is reasonably needed in
connection with such Registration Statement.
D. Exchangeable Securities. In lieu of one of the Registration Statements
to which Security Holder is entitled pursuant to Section 2.A. hereof, after
written request from Security Holder the Company shall file one Evergreen
Registration Statement for registration of Registrable Securities deliverable by
Security Holder pursuant to the terms of an offering of Exchangeable Securities
(including the sale of the Registrable Securities by Security Holder on the
redemption or maturity of the Exchangeable Securities), and use its best efforts
to cause the Registration Statement to become effective.
The terms of the Exchangeable Securities will provide that the conversion,
exercise or exchange right may only be utilized (x) during the calendar month of
April in any year that the Exchangeable Securities are outstanding and (y)
during the 30 days ending on the maturity or redemption of the Exchangeable
Securities; provided, there shall be only one conversion, exercise or exchange
period in any calendar year.
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E. Expenses; Limitations on Registration. All Commission and blue sky
filing fees and underwriting discounts and commissions attributable to
securities offered on behalf of Security Holder, and the fees and expenses of
separate counsel for Security Holder, incurred in connection with effecting a
Registration pursuant to this Section 2 shall be borne by Security Holder.
Printing expenses of a prospectus which includes Registrable Securities shall be
borne by the Company and each shareholder (including Security Holder) whose
shares are included in the Registration Statement in proportion to the number of
shares being offered by each. All other expenses incurred in connection with the
Registration Statement shall be borne by the Company.
It shall be a condition precedent to the obligation of the Company to take
any action pursuant to this Section 2 in respect of the Registrable Securities
which are to be registered at the request of Security Holder that Security
Holder shall furnish to the Company such information regarding the securities
held by it and the intended method of disposition thereof as the Company shall
reasonably request and as shall be required in connection with the action taken
by the Company.
F. Indemnification. (1) In the event of any Registration of any Registrable
Securities under the Securities Act pursuant to this Section 2, the Company
agrees to indemnify and hold harmless Security Holder, its directors, officers
and employees, and each other Person, if any, who controls Security Holder
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which Security Holder or
any such director, officer, employee or controlling Person may become subject
under the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or (ii) any alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse Security Holder or such director, officer, employee or
controlling Person for legal or any other expenses reasonably incurred by
Security Holder or such director, officer, employee or controlling Person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any alleged untrue statement or alleged omission
made in such Registration Statement, preliminary prospectus, prospectus, or
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
Security Holder stating that it is specifically for use therein; and provided,
further, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the prospectus if such untrue statement or alleged untrue
statement or omission or alleged omission has been the subject of a notice given
to Security Holder pursuant to paragraph (7) of Subsection (C) if Security
Holder after receipt of such notice and prior to the receipt of a corrected
prospectus sold a Registrable Security to the Person asserting such loss, claim,
damage, liability or expense who purchased such Registrable Security which is
the subject thereof form Security Holder. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
Security Holder or such director, officer, employee or participating Person or
controlling Person, and shall survive the transfer of such securities by
Security Holder.
(2) Security Holder agrees to indemnify and hold harmless the Company, its
directors, officers and employees and each other Person, if any, who controls
the Company against any losses, claims, damages or liabilities joint or several,
to which the Company or any such director, officer, or employee or any such
Person may become subject under the Securities Act or any other statute or at
common law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any alleged untrue
statement of any material fact contained, on the effective date thereof, in any
Registration Statement under which Registrable Securities were registered under
the Securities Act at the request of Security Holder, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereto,
or (ii) any alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such alleged untrue
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statement or alleged omission was made in such Registration Statement,
preliminary prospectus, prospectus, amendment or supplement in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by Security Holder specifically stating it is for use
therein, and shall reimburse the Company or such director, officer, employee or
other Person for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(3) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a claim
referred to in the preceding paragraphs of this Subsection E, such indemnified
party 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, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligation under this
Subsection E to the extent the indemnifying party is not materially prejudiced
by such failure. In case any such action is brought against an indemnified
party, the indemnified party shall permit the indemnifying party to assume the
defense of such action or proceeding, provided that counsel for the indemnifying
party, who shall conduct the defense of such action or proceeding shall be
approved by the indemnified party (whose approval shall not be unreasonably
withheld) and the indemnified party may participate in such defense at such
indemnified party's expense unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, in which event the indemnifying
party shall pay the reasonable fees and expense of separate counsel for the
indemnified party. No indemnifying party will 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 party of a
release from all liability in respect to such claim or litigation. The
indemnifying party 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 for all indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent.
(4) Indemnification similar to that specified in the preceding paragraphs
of this Subsection E shall be given by the Company and Security Holder (with
such modifications as shall be appropriate) with respect to liability related to
any required registration or other qualification of Registrable Securities under
any Federal or state law or regulation of governmental authority other than the
Securities Act.
(5) If the indemnification provided for in this Subsection E is unavailable
or insufficient to hold harmless an indemnified party under paragraphs (1) or
(2) above, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraphs (1) or (2) above, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
Security Holder on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equity considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or Security Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and Security
Holder agree that it would not be just and equitable if contributions pursuant
to this paragraph (5) were to be determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this paragraph (5). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this paragraph (5) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim (which shall be limited as provided in paragraph (3) above if the
indemnifying party has assumed the defense of any such action in accordance with
the provisions thereof) which is the subject of this paragraph (5).
Notwithstanding the provisions of this paragraph (5), in respect of any loss,
claim, damage or liability based upon any untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact which
relates to information other than information supplied by Security Holder,
Security Holder shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable
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Securities offered by it and distributed to the public were offered to the
public exceeds the amount of any damages which Security Holder has 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 Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Promptly after receipt by an indemnified party under this
paragraph (5) of notice of the commencement of any action against such party in
respect of which a claim for contribution may be made against an indemnifying
party under this paragraph (5), such indemnified party shall notify the
indemnifying party in writing of the commencement thereof if the notice
specified in paragraph (3) above has not been given with respect to such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party under this paragraph
(5) to the extent such omission is not prejudicial.
G. Public Availability of Information. The Company shall comply with all
public information reporting requirements of the Commission, to the extent
required from time to time to enable Security Holder to sell Registrable
Securities without Registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of Security Holder, the
Company will deliver to Security Holder a written statement as to whether it has
complied with such requirements.
H. Supplying Information. The Company shall cooperate with Security Holder
in supplying such information as may be necessary for Security Holder to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of any Registrable Securities.
I. Specific Performance. Each party hereto acknowledges and agrees that
each other party hereto would be irreparably harmed and would have no adequate
remedy of law if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly, it
is agreed that, in addition to any other remedies by law or in equity which may
be available, the parties hereto shall be entitled to obtain temporary and
permanent injunctive relief with respect to any breach or threatened breach of,
or otherwise obtain specific performance of the covenants and other agreements
contained in this Agreement.
Section 3. Representations and Warranties of the Company. The Company
represents and warrants to Security Holder that (a) the Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Oklahoma and has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder, (b) the execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or any of
the transactions contemplated hereby, and (c) this Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, and, assuming this Agreement constitutes a valid and
binding obligation of Security Holder is enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and similar laws affecting
creditors, rights generally from time to time and to general principles of
equity, and except as the enforceability thereof may be limited by
considerations of public policy.
Section 4. Representations and Warranties of Security Holder. Security
Holder represents and warrants to the Company that (a) it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder, (b) the execution and delivery of
this Agreement by Security Holder and the consummation by Security Holder of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Security Holder and no other corporate
proceedings on the part of Security Holder are necessary to authorize this
Agreement or any of the transactions contemplated hereby, and (c) this Agreement
has been duly executed and delivered by Security Holder and constitutes a valid
and
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Page 35 of 36 Pages
binding obligation of Security Holder, and, assuming this Agreement constitutes
a valid and binding obligation of the Company, is enforceable against Security
Holder in accordance with its terms subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance and similar laws
affecting creditors' rights generally from time to time and to general
principles of equity, and except as the enforceability thereof may be limited by
considerations of public policy.
Section 5. Stock Rights and Restrictions Agreement. This Agreement shall be
in all respects subject to the terms and conditions of the Stock Rights and
Restrictions Agreement between the parties hereto and of even date herewith.
Section 6. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or transmitted by
telex, telegram or facsimile transmission or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Security Holder, to:
Xxxx-XxXxx Corporation
X.X. Xxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Facsimile No: (000) 000-0000
(b) if to the Company, to:
Devon Energy Corporation
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: J. Xxxxx Xxxxxxx, President
Facsimile No.: (000) 000-0000
with a copy to:
McAfee & Xxxx A Professional Corporation
00xx Xxxxx, Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Section 5. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Oklahoma.
Section 6. Counterparts. This Agreement may be executed in any number of
counterparts, which together shall constitute a single agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their officers thereunto duly authorized.
DEVON ENERGY CORPORATION
By
/s/ J. XXXXX XXXXXXX
--------------------------------
J. Xxxxx Xxxxxxx
President and Chief Executive
Officer
XXXX-XXXXX CORPORATION
By /s/ XXXX X. XXXXXXX
--------------------------------
Xxxx X. Xxxxxxx, President and
Chief Operating Officer
