REGISTRATION RIGHTS AGREEMENT
Among
XXXXXX PETROLEUM CORPORATION
And
EACH OF THE OTHER PERSONS LISTED ON THE SIGNATURE PAGES
ATTACHED HERETO OR OTHERWISE PARTY TO THIS AGREEMENT
January 14, 2000
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into
this 14th day of January, 2000, by and among Xxxxxx Petroleum Corporation,
a Louisiana corporation (the "Company"), and each of the other Persons
listed on the signature pages attached hereto or otherwise party to this
Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended Joint Plan of
Reorganization of the Company and Noteholder Plan Proponents, with
Immaterial Modifications, the Company has issued shares of Common Stock (as
hereinafter defined) of the Company representing 100% of the issued and
outstanding Common Stock and Warrants (as hereinafter defined) to acquire
additional shares of Common Stock; and
WHEREAS, the parties hereto desire to set forth certain additional
agreements among them relating to the Registrable Securities (as
hereinafter defined) owned by the Common Shareholders and Xxxxxx.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
Section 1. DEFINED TERMS. The following capitalized terms when used
in this Agreement shall have the following meanings:
"Agreement" shall have the meaning set forth in the first paragraph of
this Agreement.
"Common Shareholders" shall collectively mean each of the Persons
listed on the signature pages attached hereto or otherwise party to this
Agreement who as of such date owns outstanding shares of Common Stock.
"Common Stock" means the common stock, no par value, of the Company.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"Controlling Holders" means the TCW Funds, unless and until the
earlier of such date that (a) the TCW Funds collectively own less than 5%
of the Registrable Securities, or (b) solely as a result of any Transfers
(as defined in the Stockholders' Agreement) by the TCW Funds, the TCW Funds
collectively own less than 10% of the Registrable Securities, and,
thereafter, Holders of a majority of the Registrable Securities
participating in a registration pursuant to this Agreement.
"Demand Registration" means a demand registration as defined in
Section 2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Xxxxxx" shall mean XxXxxx X. Xxxxxx.
"Holders" means the Common Shareholders and Xxxxxx, and any
combination of them, and the term "Holder" shall mean any such Person.
"Inspector" shall have the meaning set forth in Section 2(e)(x) of
this Agreement.
"new rights" shall have the meaning set forth in Section 2(j) of this
Agreement.
"Person" means an individual, corporation, partnership, limited
liability company, business trust, joint stock company, unincorporated
association, or other entity of whatever nature.
"Piggyback Registration" means a piggyback registration as defined in
Section 2(b) hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments
and supplements to the prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference in such prospectus.
"Public Offering" means any underwritten public offering, initiated by
resolution of the board of directors of the Company, of the Common Stock
pursuant to an effective registration statement filed under the Securities
Act.
"Recommended Number" shall have the meaning set forth in Section 2(b)
of this Agreement.
"Registrable Securities" means (a) all shares of Common Stock owned
beneficially or of record by the Holders, (b) all shares of Common Stock
issued or issuable upon exercise of any Warrants, but only to the extent
that such shares of Common Stock have actually been issued or will be
issued so as to allow simultaneous exercise of the Warrants with the
registration rights provided pursuant to this Agreement, and (c) any other
securities issued by the Company after the date hereof with respect to such
shares of Common Stock by means of exchange, reclassification, dividend,
distribution, split up, combination, subdivision, recapitalization, merger,
spin-off, reorganization or otherwise; provided, however, that as to any
Registrable Securities, such securities shall cease to constitute
Registrable Securities for the purposes of this Agreement if and when: (i)
a Registration Statement with respect to the sale of such securities shall
have been declared effective by the SEC and such securities shall have been
sold pursuant thereto; (ii) such securities shall have been sold in
compliance with of all applicable resale provisions of Rule 144 under the
Securities Act; or (iii) such securities cease to be issued and outstanding
for any reason.
"Registration Statement" means any registration statement filed by the
Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus included therein,
amendments and supplements to such registration statement, including post-
effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"SEC" means the Securities and Exchange Commission, or any successor
agency thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders' Agreement" shall have the meaning set forth in Section
4(j).
"TCW Funds" shall mean, collectively, TCW/Crescent Mezzanine Partners,
L.P., TCW/Crescent Mezzanine Trust, TCW/Crescent Mezzanine Investment
Partners, L.P., TCW Shared Opportunity Fund II, L.P., and TCW Leveraged
Income Trust, L.P.
"Warrants" shall mean the Series A, Series B, Series C and Series D
warrants to purchase Common Stock issued by the Company.
Section 2. REGISTRATION RIGHTS
(a) DEMAND REGISTRATION. (i) At any time, and from time to time,
after the earlier of (A) January 14, 2001 or (B) a Public Offering, the
Controlling Holders may make a written request for registration of all or
part of their Registrable Securities under the Securities Act (a "Demand
Registration"). Within ten days after receipt of any such request (which
shall specify the number of shares of Registrable Securities to be
registered and the intended method of disposition thereof), the Company
shall give written notice of such requested registration to all other
Holders of Registrable Securities and shall include in any such
registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after
the receipt of the Company's notice.
(ii) The Controlling Holders shall be entitled to have effected
up to four Demand Registrations pursuant to this Section 2(a). A
registration will not count as one of the permitted Demand Registrations
until it has been declared effective by the SEC and remains effective for
the period specified in Section 2(e)(i), and a registration initiated as
one of the Demand Registrations will not count as one of the permitted
Demand Registrations unless the Controlling Holders are able to register
and sell at least 50% of the Registrable Securities requested by them to be
included in such registration. The Controlling Holders may, at any time
prior to the effective date of the Registration Statement relating to such
registration, revoke such request by providing a written notice to the
Company revoking such request.
(iii) If the Controlling Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. The Controlling Holders shall select the
managing underwriters and any additional investment bankers and managers to
be used in connection with the offering; provided that the lead managing
underwriter must be reasonably satisfactory to the Company.
(iv) Neither the Company nor any of its security holders (other
than the Holders) shall be entitled to include any of the Company's
securities in a Registration Statement initiated as a Demand Registration
under this Section 2(a) without the consent of the Controlling Holders;
provided that if the Company or its security holders are allowed to
participate, such participation shall be subject to Section 2(c) hereof.
(v) If any Demand Registration which is proposed by the Company
to be effected by the filing of a Registration Statement on Form S-3 (or
any successor or similar short-form registration statement) shall be in
connection with an underwritten public offering and if the lead managing
underwriter shall advise the Company in writing that, in its opinion, the
use of another form of Registration Statement is of material importance to
the success of such proposed offering, then such registration shall be
effected on such other form. The Company agrees to include in any such
Registration Statement all information which, in the opinion of the legal
counsel chosen by the Controlling Holders pursuant to Section 2(f) hereof,
is required to be included.
(vi) If the Company at any time grants to any other holders of
the Company's securities any rights to request the Company to effect the
registration under the Securities Act of any shares of Common Stock on
terms more favorable to such holders than the terms set forth in this
Agreement, the terms of this Agreement shall be deemed amended or
supplemented to the extent necessary to provide the Holders of Registrable
Securities with more favorable terms.
(b) PIGGYBACK REGISTRATION. If the Company at any time proposes to
file a registration statement under the Securities Act with respect to an
offering of securities (i) for the Company's own account (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may
be adopted by the SEC for transactions traditionally registered on Form S-4
or S-8) or (ii) for the account of any of its security holders (other than
pursuant to a Demand Registration under Section 2(a)), then the Company
shall give written notice of such proposed filing to each Holder of
Registrable Securities as soon as practicable (but in no event later than
the earlier to occur of (i) the tenth day following receipt by the Company
of notice of exercise of other Demand Registration rights and (ii) 45 days
before the filing date), and such notice shall offer each Holder of
Registrable Securities the opportunity to register such number of shares of
Registrable Securities as they may request within 30 days after receipt of
the Company's notice on the same terms and conditions as the Company's or
such other security holder's (a "Piggyback Registration"). The Holders of
Registrable Securities shall be permitted to withdraw all or any part of
their Registrable Securities from a Piggyback Registration at any time
prior to the date the Registration Statement filed pursuant to such
Piggyback Registration becomes effective with the SEC. No registration
statement effected under this Section 2(b) shall relieve the Company of its
obligations to effect a Demand Registration under Section 2(a).
(c) REDUCTION OF OFFERING. Notwithstanding anything contained
herein, if the Demand Registration pursuant to Section 2(a) or Piggyback
Registration is an underwritten offering and the lead managing underwriter
of such offering reasonably determines that the size of the offering that
the Company, the Holders of Registrable Securities and any other Persons
whose securities are proposed to be included in such offering is such that
the offering or the offering price would be materially and adversely
affected, the Company will include in such registration in the following
order of priority (i) first, all Registrable Securities requested to be
included in such registration by the Common Shareholders pursuant to this
Section 2 (provided that if the number of such Registrable Securities
exceeds the number recommended by the lead managing underwriter (the
"Recommended Number"), the number of such Registrable Securities included
in such registration shall be allocated pro rata among the Common
Shareholders participating in such registration on the basis of the
relative number of shares of Registrable Securities each such Holder has
requested to be included in such registration), and (ii) second, to the
extent that the Registrable Securities requested to be included in such
registration by the Common Shareholders pursuant to this Section 2 are less
than the Recommended Number, the securities proposed to be sold by other
Holders of Registrable Securities, allocated pro rata among such other
Holders of Registrable Securities on the basis of the number of shares of
Registrable Securities each such Holder has requested to be included in
such registration, and (iii) third, to the extent that the Registrable
Securities requested to be included in such registration by the Common
Shareholders and other Holders of Registrable Securities pursuant to this
Section 2 are less than the Recommended Number, the securities proposed to
be sold by other Persons, allocated pro rata among such other Persons on
the basis of the number of shares of Common Stock each such Person has
requested to be included in such registration.
(d) OTHER DEMAND REGISTRATION. Xxxxxx shall be entitled to have
effected up to two Demand Registrations, provided that (i) neither such
Demand Registration may be commenced until 180 days following an initial
Public Offering by the Company, (ii) with respect to the first Demand
Registration that may be effected by Xxxxxx pursuant to this paragraph,
Xxxxxx shall be entitled to demand registration of all or part of his
Registrable Securities and (iii) with respect to his second Demand
Registration, Xxxxxx shall only be entitled to demand registration of all
or part of his Registrable Securities to the extent such Registrable
Securities have been issued or are issuable upon exercise of the Series B,
Series C or Series D Warrants.
(e) FILINGS; INFORMATION. Whenever the Holders of Registrable
Securities request that any Registrable Securities be registered pursuant
to this Section 2, the Company will use its best efforts to effect the
registration of such Registrable Securities and to permit the sale of such
Registrable Securities in accordance with the intended method of
disposition thereof, as promptly as is practicable, and in connection with
any such request:
(i) the Company will as expeditiously as possible (but, in the
case of a Demand Registration pursuant to Section 2(a), in no event later
than 30 days after receipt of a request to file a Registration Statement
with respect to such Registrable Securities), prepare and file with the SEC
a Registration Statement on any form for which the Company then qualifies
and which counsel for the Company shall deem appropriate and available for
the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof and, subject to
Section 2(a)(v) in the case of a Demand Registration, which is reasonably
satisfactory to the Controlling Holders, and use its best efforts to cause
such Registration Statement to become and remain effective for a period of
not less than 180 days (or such shorter period which will terminate when
all Registrable Securities covered by such Registration Statement have been
sold); provided that if at the time the Company receives a request to file
a Registration Statement with respect to Registrable Securities, the
Company is engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required in such
Registration Statement (but would not be required if such Registration
Statement were not filed) and the board of directors of the Company
determines in good faith that such disclosure would be materially
detrimental to the Company and its stockholders, the Company shall have a
period of not more than 90 days (less the number of days during the
previous 12 months that the use of a Prospectus was suspended pursuant to
Section 2(e)(vi) and/or this Section 2(e)(i)) within which to file such
Registration Statement measured from the date of the Company's receipt of
the request for registration in accordance with Section 2(a) hereof. The
filing of a Registration Statement may only be deferred once for any
potential transaction or event or related transactions or events that could
arise as a result of negotiations or other activities and any Registration
Statement whose filing has been deferred as a result shall be filed
forthwith if the negotiations or other activities are disclosed or
terminated. In order to defer the filing of a Registration Statement
pursuant to this Section 2(e)(i),the Company shall promptly, upon
determining to seek such deferral, deliver to the Holders of Registrable
Securities covered by such Registration Statement a certificate signed by
the President or Chief Financial Officer of the Company stating that the
Company is deferring such filing pursuant to this Section 2(e)(i).
(ii) the Company will prepare and file with the SEC 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 for the period set forth in Section
2(e)(i) and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition
by the sellers thereof set forth in such Registration Statement.
(iii) the Company will, prior to filing a Registration Statement
or any amendment or supplement thereto, furnish to the Holders of
Registrable Securities participating in such registration (and one counsel
selected by such Holders) and each applicable managing underwriter, if any,
copies thereof for their review and approval within a reasonable period of
time, and thereafter furnish to such Holders and each such underwriter, if
any, such number of copies of such Registration Statement, amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and the Prospectus included in
such Registration Statement (including each preliminary Prospectus) as such
Holders or each such underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities.
(iv) After the filing of the Registration Statement, the Company
will promptly notify the Holders of Registrable Securities participating in
such registration of when the Registration Statement has become effective
and of any stop order issued or, to the Company's knowledge, threatened to
be issued by the SEC and take all reasonable actions required to prevent
the entry of such stop order or to remove it as soon as possible if
entered.
(v) the Company will use its best efforts to qualify the
Registrable Securities for offer and sale under such other securities or
blue sky laws of such jurisdictions in the United States as the Holders of
Registrable Securities participating in such registration reasonably
request; PROVIDED that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise
be required to qualify but for this subparagraph 2(d)(v), (B) subject
itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(vi) the Company will use its best efforts to cause the
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 Holders thereof to consummate
the disposition of the Registrable Securities.
(vii) the Company will as promptly as is practicable notify the
Holders of Registrable Securities participating in such registration, at
any time when a Prospectus is required by law to be delivered in connection
with sales by an underwriter or dealer, of the occurrence of any event
requiring the preparation of a supplement or amendment to such Prospectus
so that, as thereafter filed with the SEC and delivered to the purchasers
of such Registrable Securities, such Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and
promptly make available to such Holders and to the underwriters any such
supplement or amendment. The Holders agree that, upon receipt of any notice
from the Company of the occurrence of any event of the kind described in
the preceding sentence, the Holders will forthwith discontinue the offer
and sale of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until receipt by the Holders and the
underwriters of the copies of such supplemented or amended Prospectus and,
if so directed by the Company, the Holders will deliver to the Company all
copies, other than permanent file copies, then in the Holders' possession
of the most recent Prospectus covering such Registrable Securities at the
time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective as provided in Section 2(e)(i) by
the number of days during the period from and including the date of the
giving of such notice to the date when the Company shall make available to
the Holders such supplemented or amended Prospectus.
(viii) the Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or facilitate the
sale of such Registrable Securities.
(ix) the Company will furnish to the Holders of Registrable
Securities participating in such registration and to each underwriter a
signed counterpart, addressed to such Holders or such underwriter, of an
opinion or opinions of counsel to the Company and a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as such Holders or the
managing underwriter reasonably requests.
(x) the Company will make available for inspection by any Holder
of Registrable Securities participating in such registration, any
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by any such
Holder or underwriter (individually, an "Inspector"), all financial and
other records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company officers, directors and
employees to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement.
(xi) the Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective
date of the Registration Statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the SEC thereunder.
(xii) if any such Registration Statement refers to any of the
Controlling Holders by name or otherwise as the holder of any securities of
the Company and if in its sole and exclusive judgment, such Controlling
Holder is or might be deemed to be a controlling Person of the Company,
such Controlling Holder shall have the right to require (A) the insertion
therein of language, in form and substance satisfactory to such Controlling
Holder and presented to the Company in writing, to the effect that the
holding by such Controlling Holder of such securities is not to be
construed as a recommendation by such Controlling Holder of the investment
quality of the Company's securities covered thereby and that such holding
does not imply that such Controlling Holder shall assist in meeting any
future financial requirements of the Company or (B) in the event that such
reference to such Controlling Holder by name or otherwise is not required
by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Controlling Holder.
(xiii) the Company will include in any such Registration
Statement any all information which the Controlling Holders shall
reasonably request.
(xiv) the Company will use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange or market
on which the Common Stock is then listed.
(xv) the Company will provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
Registration Statement.
The Company may require the Holders of Registrable Securities
participating in such registration to furnish promptly in writing to the
Company such information regarding such Holders, the plan of distribution
of the Registrable Securities and other information as the Company may from
time to time reasonably request or as may be legally required in connection
with such registration.
If a registration pursuant to Section 2 involves an underwritten
offering, the Company agrees, if so required by the lead managing
underwriter, not to effect any public sale or distribution of any of its
securities (other than pursuant to Form S-4 or S-8) during the seven days
prior to and during the 180-day period beginning on, the effective date of
such registration, except for such underwritten offering.
(f) REGISTRATION EXPENSES. In connection with any Demand
Registration or any Piggyback Registration, the Company shall pay all
expenses incident to the Company's performance of or compliance with this
Agreement, including without limitation the following expenses: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities); (iii) printing expenses; (iv) messenger and delivery expenses;
(v) fees and expenses incurred in connection with the listing of the
Registrable Securities; (vi) internal expenses; (vii) fees and expenses of
counsel and independent certified public accountants for the Company and
(viii) the reasonable fees and expenses of any additional experts retained
by the Company in connection with such registration.
In connection with the preparation and filing of a Registration
Statement pursuant to a Demand Registration pursuant to Section 2(a), the
Company will also pay the reasonable fees and expenses of a single legal
counsel chosen by the Controlling Holders. In connection with each
Piggyback Registration in which the Holders of Registrable Securities
participate which is not subject to the preceding sentence, the Company
shall arrange for the Holders of Registrable Securities covered by such
registration to be represented, jointly with holders of other securities
included in such registration and without expense to the Holders of
Registrable Securities included in such registration, by counsel acceptable
to the Controlling Holders. The Holders of Registrable Securities who
participate in any registration pursuant to this Agreement shall pay, on a
pro rata basis, any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities.
(g) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registered offering contemplated hereunder
unless such Person (i) agrees to sell its securities on the basis provided
in any underwriting arrangements approved by the Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all
questionnaires, indemnities, underwriting agreements and other documents
(other than powers of attorney) reasonably required under the terms of such
underwriting arrangements and this Agreement; provided that no Holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters other than the representations and warranties regarding such
Holder and such Holder's intended method of distribution.
(h) HOLDBACK AGREEMENTS. Each Holder of Registrable Securities agrees
not to effect any public sale or distribution (including a sale pursuant to
Rule 144 or 144A of the Securities Act) of any Registrable Securities, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven day period prior to and during the 180-day
period beginning on, the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in which any Holder
of Registrable Securities participate, other than the Registrable
Securities to be sold pursuant to such Registration Statement, and only if
and to the extent required by the lead managing underwriter; and provided
that the Holders of the Registrable Securities shall not be so restricted
unless comparable agreements are entered into by each executive officer and
director of the Company and each holder of at least 2% (on a fully-diluted
basis) of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, purchased from the Company
at any time after the date hereof. Notwithstanding anything to the
contrary contained herein, the Holders of Registrable Securities shall have
the right to pledge their Registrable Securities, provided that the pledgee
agrees in writing to be bound by the restrictions contained in this Section
2(h).
(i) OTHER REGISTRATIONS. If the Company has filed a Registration
Statement with respect to Registrable Securities pursuant to Section 2, and
if such Registration Statement has not been withdrawn or abandoned, the
Company shall not file or cause to be effected any other registration of
any of its equity securities or securities convertible into or exchangeable
or exercisable for such securities under the Securities Act (except on Form
S-8 or any successor form), whether on its own behalf or at the request of
any holder or holders of such securities, until a period of at least six
months has elapsed from the effective date of such previous registration
statement.
(j) OTHER REGISTRATION RIGHTS. The Company will not grant any Person
any Demand or Piggyback Registration rights with respect to any securities
of the Company, except that the Company may grant piggyback registration
rights ("new rights") that (i) are not in conflict or inconsistent with,
or more favorable than, the rights of the Holders of Registrable Securities
set forth in this Agreement, (ii) do not entitle such Person to be included
in any Demand Registration, and (iii) provide that the Holders of
Registrable Securities under this Agreement have piggyback rights upon the
exercise of such new rights and shall be included in such registration
statement on a first priority basis as provided in Section 2(c) hereof.
3. INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Securities Act pursuant to
Section 2 hereof, the Company will, and it hereby does, indemnify and hold
harmless, to the full extent permitted by law, each of the Holders of
Registrable Securities covered by such Registration Statement, its officers
and directors, employees, agents, general partners, limited partners,
managers and managing directors thereof, 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 Holder or any such underwriter within the
meaning of the Securities Act, from and against any and all losses, claims,
damages, or liabilities, joint or several, and expenses (including any
amounts paid in settlement effected with the Company's consent) to which
such Holder, any such director, officer, employee, agent, general partner,
limited partner, manager or managing director or any such underwriter or
controlling Person may become subject under the Securities Act, common law
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) or expenses arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
securities were registered under the Securities Act or any Prospectus, (ii)
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 or (iii) any violation by the Company of any rule or regulation
promulgated under the Securities Act or the Exchange Act, or other federal
or state law applicable to the Company and relating to any action or
inaction required by the Company in connection with such registration, and
the Company will reimburse such Holder and each director, officer,
employee, agent, general partner, limited partner, manager, managing
director or underwriter or controlling Person for any legal or any other
expense reasonably incurred by them in connection with investigating or
defending such loss, claim, liability, action or proceedings, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any alleged untrue statement or omission or any other
securities law violation; provided 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 any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or any Prospectus in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Holder or underwriter
specifically stating that it is for use in the preparation thereof; and
provided, further, that the Company will 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, under the indemnity agreement in
this Section 3(a) with respect to any preliminary prospectus as amended or
supplemented as the case may be, to the extent that any such loss, claim,
damage or liability of such underwriter or controlling Person results from
the fact that such underwriter sold Registrable Securities to a person to
whom there was not sent or given, at or prior to the written confirmation
of such sale, a copy of the final prospectus (including any documents
incorporated by reference therein), whichever is most recent, if the
Company has previously furnished copies thereof to such underwriter and
such final prospectus, as then amended or supplemented, has corrected any
such misstatement or omission. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such
Holder or any such director, officer, employee, agent, general partner,
limited partner, manger, managing director, underwriter or controlling
Person and shall survive the transfer of such securities by such Holder.
(b) INDEMNIFICATION BY THE HOLDERS. The Company may require, as a
condition to including any Registrable Securities in any Registration
Statement filed in accordance with Section 2 hereof, that the Company shall
have received an undertaking reasonably satisfactory to it from the Holders
of such Registrable Securities or any underwriter, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 3) the Company and its controlling Persons
and all other prospective sellers and their respective controlling Persons
with respect to any statement or alleged statement in or omission or
alleged omission from such Registration Statement or any Prospectus, 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 through an instrument duly executed by such Holder specially
stating that it is for use in the preparation of such Registration
Statement or any Prospectus. The parties hereto acknowledge and agree that,
unless otherwise expressly agreed to in writing by Holders of Registrable
Securities to the contrary, for all purposes of this Agreement the only
information furnished or to be furnished to the Company for use in any
Registration Statement or Prospectus are statements specifically relating
to (i) the beneficial ownership of shares of Common Stock by such Holder
and its Affiliates, (ii) the name and address of such holder, and (iii) the
method or methods of distribution of such Holders. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the Holders or any of their respective
directors, officers and controlling Persons and shall survive the transfer
of such securities by such Holder; provided, however, that no such Holder
shall be liable under this Section 3 for any amounts exceeding the net
proceeds received by the Holder from the sale of Registrable Securities
pursuant to such Registration Statement or Prospectus by such Holder and no
such Holder shall be liable under this Section 3 with respect to any
settlement made without such Holder's consent.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 3, 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 obligations under the preceding
subdivisions of this Section 3, except to the extent that the indemnifying
party is actually materially prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in
such indemnified party's reasonable judgement a conflict of interest
between such indemnified and indemnifying parties may exist in respect of
such claim, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnified party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after
the assumption of the defense thereof. No indemnifying party will consent
to entry of any judgment or enter into any settlement without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld) unless such settlement requires no more than a
monetary payment for which the indemnifying party agrees to indemnify the
indemnified party and includes a full, unconditional and complete release
of the indemnified party from all liability in respect to such claim or
litigation. The indemnified party shall be entitled to take control of the
defense of any claim as to which, in the reasonable judgment of the
indemnifying party's counsel, representation of both the indemnifying party
and the indemnified party would be inappropriate under the applicable
standards of professional conduct due to actual or potential differing
interests between them. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of such additional counsel
or counsels.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by
this Section 3 is for any reason not available or insufficient for any
reason to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities or expenses referred to therein, the parties
required to indemnify by the terms hereof shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company, any
Holder of Registrable Securities and one or more of the underwriters. In
determining the amounts which the respective parties shall contribute,
there shall be considered the relative benefits received by each party from
the offering of the Registrable Securities by taking into account the
portion of the proceeds of the offering realized by each, and the relative
fault of each party by taking into account the parties' relative knowledge
and access to information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any statement or
omission and any other equitable consideration appropriate under the
circumstances. The Company and each Holder selling securities agree with
each other that no seller of Registrable Securities shall be required to
contribute any amount in excess of the amount such Holder would have been
required to pay to an indemnified party if the indemnity under this Section
3 were available. The Company and each such Holder agree with each other
and the underwriters of the Registrable Securities, if requested by such
underwriters, that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if
the underwriters were treated as one entity for such purpose) or for the
underwriter's portion of such contribution to exceed the percentage that
the underwriters discount bears to the initial public offering price of the
Registrable Securities. For purposes of this Section 3(d), each Person, if
any, who controls an underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as such underwriter, and each director and each officer of
the Company who signed the Registration Statement, and each Person, if any,
who controls the Company or a seller of Registrable Securities within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Company or a seller
of Registrable Securities as the case may be. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(e) OTHER INDEMNIFICATION RIGHTS. Indemnification similar to that
specified in the preceding subsections of this Section 3 (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 or governmental
authority other than the Securities Act.
(f) NON-EXCLUSIVITY. The obligations of the parties under this
Section 3 shall be in addition to any liability which any party may
otherwise have to any other party.
4. MISCELLANEOUS.
(a) NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing or by telex, telephone or facsimile
transmission with subsequent written confirmation, and may be personally
served or sent by United States mail and shall be deemed to have been given
upon receipt by the party notified. For purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered as
provided in this Section 4) shall be as set forth opposite each party's
name on the signature page hereof.
(b) TERMINATION. This Agreement will terminate upon the earlier of
(i) the date upon which the Company and the Holders of Registrable
Securities mutually agree in writing to terminate this Agreement and (ii)
the first date on which there ceases to be any Registrable Securities.
(c) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement or which would
materially and adversely affect the marketability of such Registrable
Securities in any such registration (including effecting a stock split or a
combination of shares).
(d) REMEDIES. Any Person having any rights under any provision of
this Agreement shall be entitled to enforce such rights specifically, to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for
specific performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Agreement. The rights and
remedies of any party based upon, arising out of or otherwise in respect of
any breach of any provision of this Agreement shall in no way be limited by
the fact that the act, omission, occurrence or other state of facts upon
which any claim of any such breach is based may also be the subject matter
of any other provision of this Agreement (or of any other Agreement between
the parties) as to which there is no breach.
(e) WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be
waived, only by a written instrument signed by the Company and each of the
Holders or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising a right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the
part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude a further
exercise thereof or the exercise of any other such right, power or
privilege.
(f) SEVERABILITY. If any provision of this Agreement or the
applicability of any such provision to a person or circumstances shall be
determined by any court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to Persons or circumstances other than those
for which it is so determined to be invalid and unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and
shall be enforced to the fullest extent permitted by law. To the extent
permitted by applicable law each party hereto hereby waives any provision
or provisions of law which would otherwise render any provision of this
Agreement invalid, illegal or unenforceable in any respect.
(g) COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts and when so executed shall constitute one
Agreement, notwithstanding that all parties are not signatories to the same
counterpart.
(h) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws thereof.
(i) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of
the parties hereto, including but not limited to the heirs and legatees of
Xxxxxx; provided that the registration rights granted by the Company
pursuant to this Agreement may only be transferred to transferees (other
than transferees who are heirs or legatees of Xxxxxx) who are the Holders
of Registrable Securities in an amount greater than 1% of the outstanding
Common Stock. Any successor in interest or assignee of any party hereto
must expressly agree in writing to assume the obligations of the transferor
pursuant to this Agreement.
(j) ENTIRE AGREEMENT. This Agreement, together with the
Stockholders' Agreement (the "Stockholders' Agreement") dated as of January
14, 2000, by and among the Company and the parties thereto, and the Warrant
Agreement dated as of January 14, 2000, by and among the Company and the
parties thereto constitute the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and there
are no restrictions, promises, representations, warranties, covenants, or
undertakings with respect to the subject matter hereof, other than those
expressly set forth or referred to herein or therein. This Agreement, the
Stockholders' Agreement and the Warrant Agreement supersede all prior
agreements and understandings between the parties hereto with respect to
the subject matter hereof.
(k) OTHER REGISTRATION RIGHTS AGREEMENTS. Without the prior written
consent of the Holders of Registrable Securities, the Company will neither
enter into any new registration rights agreements that conflict with the
terms of this Agreement nor permit the exercise of any other registration
rights in a manner that conflicts with the terms of the registration rights
granted hereunder.
* * * * * * * * *
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
XXXXXX PETROLEUM CORPORATION
By: /s/ XxXxxx X. Xxxxxx
-----------------------------
Name: XxXxxx X. Xxxxxx
Title: CEO
HOLDERS:
TCW/CRESCENT MEZZANINE PARTNERS, L.P.
TCW/CRESCENT MEZZANINE TRUST
TCW/CRESCENT MEZZANINE INVESTMENT
PARTNERS, L.P.
By: TCW/Crescent Mezzanine, L.L.C.
Its General Partner or Managing Director
By: /s/ Xxxxxxxx X. Tell, Jr.
-----------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Asset Management Company,
Its Investment Manager
By: /s/ Xxxxxxxx X. Tell, Jr.
-----------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisors (Bermuda), Ltd.
As General Partner
By: /s/ Xxxxxxxx X. Tell, Jr.
-----------------------------
Name: Xxxxxxxx X. Tell, Jr.
Title: Managing Director
By: TCW Investment Management Company,
As Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
BANKAMERICA INVESTMENT CORP.
By: /s/ X.X. Xxx Xxxxxx
-----------------------------
Name: X.X. Xxx Xxxxxx
Title: Attorney-in-Fact
XXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxx
-----------------------------
Name: Xxxxx X. XxXxxxx
Title:
/s/ XxXxxx X. Xxxxxx
-----------------------------
XxXxxx X. Xxxxxx
Type or Print Name of Beneficial Holder
By:
-----------------------------
Name:
Its:
Address:
-----------------------------
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