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EXHIBIT 10.74
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of the day of July, 2000, by and between Tipperary Corporation, its successors
and assigns (the "Company"), and Xxxxx X. Xxxxxx (the "Holder").
WHEREAS, this Agreement is made in connection with the sale by the
Company to Holder of 300,000 shares of the common stock of the Company (the
"Shares") pursuant to that certain Purchase and Sale Agreement effective as of
June 1, 2000 (the "Purchase and Sale Agreement"), the terms of which require the
Company to provide Holder certain registration rights with respect to the
Shares.
NOW THEREFORE, THE COMPANY AND THE HOLDER AGREE AS FOLLOWS:
ARTICLE I
REGISTRATION RIGHTS
Section 1.01. CERTAIN DEFINITIONS. In addition to the other terms
defined elsewhere in this Agreement, as used in this Agreement, the following
terms shall have the following respective meanings:
(a) "COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency administering the Securities Act.
(b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the relevant times hereunder.
(c) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations thereunder, all as
the same shall be in effect at the relevant times hereunder.
(d) "REGISTRABLE SECURITIES" means any of the following shares which
have not been sold to the public or which have not lost their registration
rights as provided herein: (i) the Shares and (ii) any shares of Common Stock of
the Company, and any securities of the Company or any other corporation, issued
as a dividend or other distribution with respect to or in replacement of or
exchange for the Shares.
(e) The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
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(f) "REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Article I hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any audits incident to or required by any such registration, but
excluding the compensation of regular employees of the Company which shall be
paid in any event by the Company and excluding the fees and expenses of legal
counsel for the Holder.
(g) "SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of the Registrable Securities and all
fees and expenses of legal counsel for the Holder.
Section 1.02. REGISTRATION OF REGISTRABLE SECURITIES.
(a) REGISTRATION. The Company will file a registration statement with
the Commission with respect to the Registrable Securities if the Company
receives a written request from the Holder at any time up to three years after
the date of this Agreement, provided that initial request shall be for a minimum
of 150,000 Shares. The Company will, as soon as practicable, use its diligent
efforts to effect such registration as would permit the sale of all or such
portion of such Registrable Securities as are specified in such request. No
additional request may be made within six months of the expiration date of
effectiveness of the registration statement relating to the initial registration
request.
The Company will not be obligated to take any action pursuant to this Section
1.02:
(A) After the Company has effected two such registrations pursuant
to this Section 1.02 and such registrations have been declared
or ordered effective; and
(B) During the period starting with the date 60 days prior to the
Company's good faith estimate of the date of filing of, and
ending on a date 180 days after the effective date of, a
registration for a registered public offering involving an
underwriting; provided the Company is actively employing in
good faith all reasonable efforts to cause such registration
statement to become effective.
Subject to the foregoing clauses (A) and (B), the Company shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Holder; provided, however, that if (i) in the good faith judgment of the
Board of Directors of the Company, such registration would be seriously
detrimental to the Company and the Board of Directors concludes, as a result,
that it is essential to defer the filing of such registration statement at such
time, and (ii) the Company shall furnish to the Holder a certificate signed by
the President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company for such registration to be filed in the near future and that it is,
therefore, essential to deter the filing of such
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registration statement, then the Company shall have the right to defer such
filing for the period during which such disclosure would be seriously
detrimental; provided, that the Company may not defer the filing for a period of
more than 180 days after receipt of the request of the Holder, and , further
provided, the Company shall not defer its obligation in this matter more than
once in any 12 month period.
The registration statement filed pursuant to the request of the Holder
may, subject to the provisions hereof, include other securities of the Company
and may include securities of the Company being sold for the account of the
Company or others.
(b) REGISTRATION STATEMENT FORM. The Company may, if permitted by law,
effect the registration pursuant to this Section 1.02 by filing a registration
statement on Form S-3 or any successor or similar short form registration
statement (or Form S-1 if Form S-3 is not available). The Company may effect the
registration by filing a shelf registration statement with the Commission
pursuant to Rule 415 under the Securities Act covering the Registrable
Securities.
Section 1.03. EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to Section 1.02 shall be borne by the Company. Unless otherwise stated,
all other expenses and all Selling Expenses relating to securities registered by
the Holder shall be borne by the Holder.
Section 1.04. REGISTRATION PROCEDURES. The Company will:
(a) use its best efforts to cause the registration statement filed
pursuant to Section 1.02 to become and remain effective for the lesser of (i)
one year, (ii) the period of time after which restrictions on sales of
securities by persons other than affiliates pursuant to Commission Rule 144(k)
(or any successor provision) terminate, or (iii) until the Holder no longer owns
any of the Registrable Securities;
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for the periods
set forth in Section 1.04(a);
(c) furnish to the Holder such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as the Holder may reasonably request to facilitate the public offering
of the Registrable Securities;
(d) use its diligent good faith efforts to register or qualify the
Registrable Securities covered by such registration statement under such state
securities or Blue Sky laws of such jurisdictions as the Holder may reasonably
request, provided the Company
shall be obligated to take any action to effect any such registration or
qualification pursuant to this Section 1.04(d) in any particular jurisdiction in
which the Company would be required to execute
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a general consent to service of process in effecting such registration or
qualification unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(e) notify counsel for the Holder. promptly after it shall receive
notice thereof, of the time when such registration statement has become
effective under the Securities Act or a supplement to any prospectus forming a
part of such registration statement has been filed;
(f) notify counsel for the Holder promptly of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon the request of
the Holder, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Holder (and concurred by
counsel for the Company), is required under the Securities Act or the rules and
regulations thereunder in connection with the distribution of the Registrable
Securities;
(h) prepare and promptly file with the Commission and promptly notify
counsel for the Holder of the filing of such amendment or supplement to any such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities Act, any
event shall have occurred as the result of which any such prospectus or any
other prospectus as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading;
(i) advise counsel for the Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement under the
Securities Act or the initiation or threatening of any proceeding for such
purpose, and promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued, with it
being provided further that the effective requirements for the registration
statement referred to in Section 1.04(a) will be extended for any such time as
there shall exist any stop order in respect of the registration statement; and
(j) not file any amendment or supplement to such registration statement
or prospectus if, in the opinion of counsel for the Holder, such amendment or
supplement does not comply in all material respects with the requirements of the
Securities Act or the rules and regulations thereunder, after having been
furnished with a copy substantially in the form thereof at least two business
days before the filing thereof; provided, however, that if in the opinion of
counsel for the Company the filing of such amendment or supplement is reasonably
necessary to protect the Company from any liabilities under any applicable
federal or state law and such filing will not violate applicable law, the
Company many make such filings.
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Section 1.05. INDEMNIFICATION.
(a) The Company will indemnify, hold harmless and defend the Holder,
its officers, directors, partners, legal counsel and accountants, each
underwriter of the Registrable Securities and each person who controls a Holder
or any such underwriter within the meaning of Section 15 of the Securities Act,
against any and all expenses, claims, losses, damages and liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereof, incident to any registration
or qualification of the Registrable Securities, or which arise out of or are
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or any
violation by the Company of any other rule or regulation promulgated under the
Securities Act or any state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each such
indemnified party for any legal and any other expenses reasonably incurred by
them in connection with investigating, preparing or defending any such claim,
loss, damage, liability or action, provided that the Company will not be liable,
in any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission, made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Holder or and such underwriter.
(b) The Holder will, if Registrable Securities held by the Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, and each of its officers,
directors, legal counsel and accountants, and each person who controls the
Company with the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or action in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each such indemnified
person for any legal or any other damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Holder.
(c) Each person to be indemnified pursuant to this Section 1.05 (the
"Indemnified Party") will, promptly after its receipt of written notice of the
commencement of any action against such Indemnified Party in respect of which
indemnity may be sought from an indemnifying person this Section 1.05 (the
"Indemnifying Party") notify the Indemnifying Party in writing of the
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commencement thereof; provided, however, that the failure of any person to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement except to the extent that such Indemnifying
Party is actually prejudiced by such failure to give notice. If any such action
shall be brought against any Indemnified Party and it shall notify an
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein and, to the extent it may desire, jointly with
any other Indemnifying Party similarly notified, to assume the defense thereof,
the Indemnifying Party will not be liable to such Indemnified party under this
Section 1.05 for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation unless (i) the Indemnified Party shall have employed
counsel in an action in which the Indemnified Party and Indemnifying Party are
both defendants and there is a conflict of interest between such parties that
would prevent counsel from adequately representing both parties, (ii) the
Indemnifying Party shall not have employed counsel satisfactory within the
exercise of reasonable judgment of the Indemnified Party to represent the
Indemnified party within a reasonable time after the notice of the commencement
of the action or (iii) the Indemnifying Party has authorized the employment of
counsel for the Indemnified Party at the expense of the Indemnifying Party. The
undertaking contained in this Section 1.05 shall be in addition to any
liabilities which the Indemnifying Party may have pursuant to law.
(d) If the indemnification provided for in this Section 1.05 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
thereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements, actions or omission which resulted in such loss, liability,
claim, damage or expense as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party shall
be determined reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Section 1.06. LOCKUP XXXXXXXXX.Xx consideration for the Company
agreeing to its obligations under this Article I, the Holder agrees in
connection with any firmly underwritten public offering of the Company's Common
Stock, upon request of the Company or the underwriters managing such offering,
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of an Registrable Securities without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time from the effective date of such registration as the Company or the
underwriters may specify; provided, however, that the Holder shall have no
obligation to enter into the agreement described herein unless executive
officers and directors of the Company and all other holders of more than 5% of
the Company's outstanding Common Stock enter into similar agreements.
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Section 1.07 INFORMATION BY HOLDER. The Holder shall furnish to the
Company such information regarding the Holder and the distribution of proceeds
by the Holder as the Company may request in writing and as shall be required in
connection with an registration, qualification or compliance referred to in
Section 1.02 of this Agreement.
Section 1.08 RULE 144 REPORTING. With a view to making available to the
Holder the benefits of certain rules and regulations of the Commission which at
any time permit the sale of the Registrable Securities to the public without
registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) file with the commission in a timely manner all reports and other
documents required of the Company under the Securities Act and Exchange Act; and
(c) so long as any Holder owns any unregistered Registrable Securities,
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 and of the
Securities Act and Exchange Act, a copy of the most recent annual or quarterly
report of the Company and such other reports and documents of the Company as the
Holder may reasonably request in availing Holder of any rule or regulation of
the Commission allowing the sale of any such securities without registration.
Section 1.09. TRANSFER OF REGISTRATION RIGHTS. The rights of the Holder
to have the Company register the Registrable Securities granted to the Holder by
the Company under this Agreement may be assigned by the Holder to not more than
five transferees or assignees of any of the Holder's Registrable Securities,
provided that the Company is given written notice by the Holder at the time of
or within a reasonable time after said transfer, stating the name and address of
said transferee or assignee and identifying the securities with respect to which
such registration rights are being assigned, provided that no such assignment
shall increase the number of registrations that the Company may be required to
effect under this Agreement. Any person who, in accordance with the provisions
of this Section 1.09, becomes a transferee or assignee of any of the Registrable
Securities shall, upon agreeing in writing to be bound by the terms of this
Agreement, be included in the terms "Holder" and "Holder" so long as such person
holds such Registrable Securities and shall be entitled to take benefits of this
Agreement.
ARTICLE II
MISCELLANEOUS
Section 201. AMENDMENT. Any modification, amendment or waiver of this
Agreement or any provision hereof shall be effective only if in writing and
executed by the Holder and the Company.
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Section 2.02. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Texas without regard to its conflicts of
law principles.
Section 2.03. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
Section 2.04. NOTICES. All notices, requests, demands, consents, and
other communications hereunder shall be transmitted in writing and shall be
deemed to have been duly given when hand-delivered or sent by certified mail,
postage prepaid, with return receipt requested, addressed to the parties as
follows: to Tipperary at First Interstate Tower North, 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000; and to Holder as follows: Xxxxx X. Xxxxxx,
Separate Property, 0000 Xxxxxx Xxxxx Xxxx, Xx Xxxx, Xxxxx 00000. Any party may
change its address for purposes of this Section by giving written notice as
provided herein.
Section 2.05. SEVERABILITY. If any provision of this Agreement shall be
judicially determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired.
Section 2.06. ENTIRE AGREEMENT.This Agreement constitutes the full and
entire understanding and agreement between the parties with regard to the
subject matter hereof.
Section 2.07. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective representatives thereunto duly authorized as of the
date first above written.
TIPPERARY CORPORATION HOLDER
By: By:
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Xxxxx X. Xxxxxxxx President and Xxxxx X. Xxxxxx
Chairman of the Board
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