REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made this 9th day
of February, 2000, by and between Tipperary Corporation, a Texas corporation
(the "Company"), whose principal place of business is 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, and Xxxxx X. Xxxxxxxx, an individual (the
"Holder"), located at 00000 Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx, XX 00000.
WHEREAS, the parties have entered into a Subscription Agreement of even
date herewith (the "Subscription Agreement") under which the Holder is
purchasing from the Company 759,494 shares of the Company's Common Stock, $.02
par value (the "Stock"); and
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the Subscription Agreement, the parties hereto agree as
follows:
1. REGISTRATION RIGHTS OF SUBSEQUENT HOLDERS. This Agreement shall be
deemed to be assigned by the Holder or any subsequent holder to each transferee
of shares of the Stock; provided, however, that no such assignment shall be
deemed to have occurred unless and until the transfer of the shares of such
Stock is registered on the books of the Company. Each Holder shall provide a
copy of this Agreement to each transferee of any shares of the Stock.
2. DEMAND REGISTRATION RIGHTS.
(a) The Holders who, in the aggregate, own a majority of the total number
of shares of Stock set forth above may request that the Company prepare and file
a registration statement under the Securities Act to permit the public offering
and sale of the Stock on one occasion. Such registration requested pursuant to
this Section 2 shall be referred to as the "Demand Registration." The Company
shall within 10 days thereafter give written notice to all Holders which do not
request the Demand Registration, and each such Holder shall, within 30 days
thereafter, provide a written request to the Company as to those shares which it
desires to include in such registration. The Company shall use its best efforts
to cause all of the shares of Stock held by the Holder to be registered under
the Securities Act, all to the extent requisite to permit the sale or other
disposition (in accordance with the intended methods thereof as aforesaid) by
the Holders of such shares; provided, however, that no such request need be
honored by the Company if all Holders making the request for the Demand
Registration hold less that 100,000 shares.
(b) The Demand Registration shall not be deemed to have been effected if
(i) such registration statement, after it has become effective, is the subject
of any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not solely attributable to the
selling Holders, (ii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration statement are not satisfied, other than by reason of a failure on
the part of the selling Holders, or (iii) the Holders are not able to register
and sell all of the shares requested to be included in such registration.
(c) With respect to the Demand Registration, an investment banker or
investment bankers that may be chosen to manage the offering will be selected by
the Holders of at least a majority of the shares included in such offering;
provided that the selection of any such investment banker or investment bankers
is subject to consent by the Company, which consent shall not be unreasonably
withheld.
(d) Any securities to be included in the Demand Registration shall be
reduced to the extent determined necessary by the managing underwriter of such
offering if such managing underwriter shall have advised the selling Holders in
writing (with a copy to the Company) that, in their opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold within a price range acceptable to the selling Holders of a
majority of the shares requested to be included in such registration. If no
such notice or letter is provided, the Company may include Common Stock for its
own account or for the account of other shareholders of the Company, if and to
the extent consented to by the Holders of at least a majority of the shares
included in such offering.
(e) The Company, if requested by at least a majority of the shares to be
included in the Demand Registration, (i) shall agree not to, and shall cause its
executive officers and directors not to, effect any public sale or distribution
of its Common Stock or similar securities or securities convertible into, or
exchangeable or exercisable for, Common Stock during the 180-day period
following the effective date of a registration statement relating to a public
offering of shares if the managing underwriter or underwriters determine such
public sale or distribution would have a material adverse effect on such
offering and (ii) shall (x) cause each securityholder of the Company's privately
placed equity securities issued in connection with a financing transaction
involving at least 5% of the Company's then outstanding equity securities at any
time after the date hereof and (y) use its reasonable best efforts to cause each
other securityholder of the Company owning at least 10% of the Company's then
outstanding equity securities (other than a securityholder permitted to file a
Schedule 13G under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) to agree not to effect a public sale or distribution of the
Common Stock during the 180-day period following the effective date of a
registration statement relating to a public offering of the shares if the
managing underwriter or underwriters determine such public sale or distribution
would have a material adverse effect on such offering.
3. PIGGYBACK REGISTRATION RIGHTS. If the Company at any time proposes to
register any issuance of its securities under the Securities Act (other than a
registration on Form S-8 in connection with an employee stock purchase or option
plan or on Form S-4 in connection with mergers, acquisitions or exchange
offerings), the Company will at such time give prompt written notice to the
Holders of its intention to do so. Upon the written request of a Holder, given
within 30 days after receipt of any such notice (which request shall state the
intended method of disposition of the shares to be transferred by the Holder),
the Company shall use its best efforts to cause all of the shares of Stock held
by the Holder to be registered under the Securities Act, all to the extent
requisite to permit the sale or other disposition (in accordance with the
intended method thereof as aforesaid) by the Holder of such shares; provided,
however, that no such request need be honored by the Company if all Holders
making such a request hold less that 100,000 shares. The rights granted
pursuant to this Section 3 shall not be effective with respect to the Holder in
the case of an underwritten public offering of securities of the Company by the
Company unless the Holder agrees to the terms and conditions, including
underwriting discounts and allowances, specified by the managing underwriter of
such offering with respect to such shares. The Company shall have the right to
reduce the number of shares of the Holder to be included in a registration
statement pursuant to the exercise of the rights granted by this Section 3 if,
and to the extent that, the managing underwriter of such offering is of the good
faith opinion, supported by written reasons therefor that the inclusion of such
shares would materially adversely affect the marketing of the securities of the
Company to be offered.
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4. REGISTRATION PROCEDURE. If and whenever the Company is required by
the provisions of the Section 2 or 3 to use its best efforts to effect the
registration of any transfer of shares of Stock under the Securities Act, the
Company will, as expeditiously as possible,
(a) prepare and file with the Commission a registration statement with
respect to such transfer and use its best efforts to cause such registration
statement to become and remain effective, but not for any period longer than
nine months;
(b) 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 to comply
with the provisions of the Securities Act with respect to the transfer of all
securities covered by such registration statement, including, without
limitation, taking all necessary actions whenever the Holder, with respect to
such shares covered by such registration statement, shall desire to dispose of
the same;
(c) furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as the Holders may reasonably request
in order to facilitate the disposition of the shares owned by the Holders and
covered by such registration statement;
(d) use its best efforts to register or qualify the securities covered by
such registration statement under such other securities or blue sky laws of such
jurisdictions as the Holders shall request, and use its best efforts to do any
and all other acts and things which may be reasonably necessary to enable the
Holders to consummate the disposition in such jurisdiction of the shares owned
by the Holders and covered by such registration statement; provided that,
notwithstanding the foregoing, the Company shall not be required to register in
any jurisdiction as a broker or dealer of securities or to grant its consent to
service of process in any such jurisdiction solely on account of such intended
disposition by the Holders;
(e) furnish to the Holders a signed copy of an opinion of counsel for the
Company, in form and substance acceptable to the Holders, to the effect that:
(A) a registration statement covering such dispositions of shares has been filed
with the Commission under the Securities Act and has been made effective by
order of the Commission, (B) such registration statement and the prospectus
contained therein and any amendments or supplements thereto comply as to form in
all material respects with the requirements of the Securities Act, and nothing
has come to such counsel's attention which would cause him to believe that the
registration statement or such prospectus, amendment or supplement, at the time
such registration statement or amendment became effective or such supplement was
filed with the Commission, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein (in the case of such prospectus, amendment or
supplement, in the light of the circumstances under which they were made) not
misleading (provided that such counsel need not render any opinion with respect
to the financial statements and other financial, engineering and statistical
data included therein), and (C) to the best of such counsel's knowledge, no stop
order has been issued by the Commission suspending the effectiveness of such
registration statement and no proceedings for the issuance of such a stop order
are threatened or contemplated;
(f) furnish to the Holders a blue sky survey in the form and of the
substance customarily prepared by counsel for the Company and accepted by
sellers of securities in similar offerings, discussing
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and describing the application provisions of the securities or blue sky laws of
each state or jurisdiction in which the Company shall be required, pursuant to
Section 4(d), to register or quality such intended dispositions of such shares,
or, in the event counsel for the underwriters in such offering shall be
preparing a blue sky survey, cause such counsel to furnish such survey to, and
to allow reliance thereon by, the Holders;
(g) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission under the Securities Act and the Exchange Act,
insofar as they relate to such registration and such registration statement;
(g) use its best efforts to list such shares on any securities exchange on
which any securities of the Company are then listed or to admit such shares for
trading in any national market system in which any securities of the Company are
then admitted for trading, if the listing or admission of such securities is
then permitted under the rules of such exchange or system; and
(h) notify each Holder, at any time when a prospectus relating to the
shares is required to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
any such Holder, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such shares,
such prospectus shall not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading.
5. EXPENSES OF REGISTRATION. With respect to the registration by the
Company of transfers of shares of Stock under the Securities Act pursuant this
Agreement, the Company shall pay all expenses incurred by it (including, without
limitation, all registration and filing fees, printing expenses, blue sky fees
and expenses, costs and expenses of audits, and reasonable fees and
disbursements of counsel for the Company and one special counsel designated by
the Holders of a majority of the Shares to be registered, but specifically
excluding any underwriting discounts and allowances that are allocable to the
shares being sold by, and which shall be paid by, the Holders.
6. INFORMATION ON HOLDERS. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2, 3 or 4 that
the Holders shall furnish to the Company such written information regarding the
securities held by the Holders as the Company shall reasonably request and as
shall be required in connection with the action to be taken by the Company.
7. INDEMNIFICATION.
(a) In the event of any registration of any transfer of shares of Stock
under the Securities Act pursuant to Section 2 or 3, the Company will indemnify
and hold harmless the Holder, each of its officers, directors and partners, and
each other person, if any, who controls the Holder within the meaning of the
Securities Act, and each underwriter, if any, who participates in the offering
of such securities, against any losses, claims, damages or liabilities, or
actions in respect thereof, joint or several, to which the Holder and each
officer, director or partner, controlling person or underwriter may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities, or actions in respect thereof arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained, on the
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effective date thereof, in any registration statement under which such transfer
of securities was registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the 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 any violation by the Company of the
Securities Act, and will reimburse the Holder and each of its officers,
directors and partners, and each such controlling person or underwriter, for any
legal or any other expenses reasonably incurred by the Holder or its officers,
directors and partners or controlling persons or by each such underwriter, in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will 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 an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, preliminary
prospectus or prospectus or such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by the Holder specifically for use in the preparation
thereof. In the event of any registration by the Company or any transfer of
securities under the Securities Act pursuant to Section 2 or 3, the Holder will
indemnify and hold harmless the Company, each other person, if any, who controls
the Company within the meaning of the Securities Act and each officer and
director of the Company to the same extent that the Company agrees to indemnity
it, but only with respect to the written information relating to the Holder
furnished to the Company by the Holder specifically for use in such registration
statement; provided that the obligation to indemnify shall be individual, not
joint and several, for each Holder and shall be limited to the net amount of
proceeds received by such Holder from the sale of shares pursuant to such
registration statement.
(b) Each indemnified party shall, as promptly as practicable upon receipt
of notice of the commencement of any action against such indemnified party or
its officers, directors or partners, or any controlling person of such
indemnified party, in respect of which indemnity may be sought from an
indemnifying party on account of the indemnity agreement contained in Section
7(a), notify the indemnifying party in writing of the commencement thereof. The
omission of such indemnified party to so notify the indemnifying party of any
such action shall not relieve the indemnifying party from any liability which it
may have on account of the indemnity agreement contained in Section 7(a) to the
extent that the failure to receive such notice within a reasonable period of
time shall not have caused harm, loss or damage to the indemnifying party,
provided that, conversely, if such failure to receive notice shall have caused
any harm, loss or damage to the indemnifying party, such failure shall
constitute a defense to any liability which such indemnifying party may have on
account of such agreement to the extent of the harm, loss or damage so caused.
In case any such action shall be brought against any indemnified party, its
officers, directors and partners, or any such controlling person, and such
indemnified party shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in (and, to the
extent that the indemnifying party shall wish, to direct) the defense thereof at
the indemnifying party's own expense, in which event the defense shall be
conducted by recognized counsel chosen by the indemnifying party and approved by
the indemnified party (whose approval shall not unreasonably be withheld) and
the indemnified party may participate in such defense at its own expense (unless
it is advised by counsel that actual or potential differing interests or
defenses exist or may exist, in which case such expenses shall be paid by the
indemnifying party, provided that the indemnifying party shall not be required
to pay the expenses for more than one counsel for all such indemnified parties).
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8. MISCELLANEOUS.
8.1 GOVERNING LAW. The provisions hereof will be construed in accordance
with the laws of the State of Texas. The Company and the Holder hereby submit
to the jurisdiction of the state and federal courts located in Denver, Colorado
or Chicago, Illinois.
8.2 INDEMNIFICATION. The Holder agrees to indemnify and hold harmless the
Company and its officers, directors and persons who control the Company, from
and against all damages, losses, costs and expenses (including reasonable
attorneys' fees) which they may incur by reason of the failure of the Holder to
fulfill any of the terms or conditions of this Agreement. The Company agrees to
indemnify and hold harmless the Holder and its officers, directors and persons
who control the Holder, from and against all damages, losses, costs and expenses
(including reasonable attorneys' fees) which they may incur by reason of the
failure of the Company to fulfill any of the terms or conditions of this
Agreement.
8.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto and supersedes all prior agreements or
understandings with respect to the subject matter hereof. This Agreement may
not be amended or modified except by an instrument in writing signed by the
party against whom enforcement is sought.
8.4 SEVERABILITY. The invalidity or unenforceability of any particular
provisions of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
8.5 HEADINGS. The section headings contained herein are for convenience
only and are not intended to define or limit the contents of such sections.
8.6 NEUTRAL INTERPRETATION. This Agreement constitutes the product of the
negotiation of the parties hereto, and the enforcement hereof shall be
interpreted in a neutral manner, and not more strongly for or against any party
based upon the source of the draftsmanship hereof.
8.7 COUNTERPARTS. This Agreement may be executed in counterparts, which
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
TIPPERARY CORPORATION HOLDER
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, President and Xxxxx X. Xxxxxxxx
Chief Executive Officer
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