EXHIBIT 10.1
AMENDMENT NO. 1
TO
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (this "AMENDMENT"), dated November 3,
2003, to that certain Registration Rights Agreement (the "AGREEMENT"), dated as
of November 17, 1999, by and between Energy Partners, Ltd., a Delaware
corporation (the "COMPANY"), and Evercore Capital Partners L.P., Evercore
Capital Partners (NQ) L.P. and Evercore Capital Offshore Partners L.P., each a
limited partnership organized under the laws of the State of Delaware
(collectively, the "EVERCORE ENTITIES"), Energy Income Fund, L.P., a limited
partnership organized under the laws of the State of Delaware ("EIF"), and the
individual shareholders of the Company parties thereto (the "INDIVIDUAL
SHAREHOLDERS"). Terms used and not defined in this Amendment have the meaning
set forth in the Agreement.
WHEREAS, the parties to the Agreement desire to amend the
Agreement to enter into this Amendment to grant to EIF one demand registration
right;
NOW THEREFORE, for good and valuable consideration, the
parties hereto agree as follows:
1. AMENDMENT TO SECTION 3(a) OF THE AGREEMENT. Section 3(a) of
the Agreement is hereby amended and restated in its entirety as follows:
"(a) DEMAND REGISTRATIONS.
(i) Subject to the provisions of Section 4(a) and the
last paragraph of Section 5, (A) the Evercore Entities shall have the
right to make two written requests (each, an "EVERCORE DEMAND") and (B)
commencing on the later of (I) six months after the SEC declares the
Company's Registration Statement on Form S-3 for the registration and
resale of up to an aggregate of 4,544,572 shares of Common Stock of the
Company by Evercore effective and (II) six months after termination of
the Stockholder Agreement, EIF shall have the right to make one written
request (an "EIF DEMAND" and, together with each Evercore Demand, a
"DEMAND") on the Company to cause the Company to use commercially
reasonable efforts to file and cause to be declared effective a
Registration Statement on the then appropriate form under the
Securities Act with respect to the Eligible Common Stock, provided that
the expected offering price of the Eligible Common Stock requested to
be registered is at least $20 million, and provided, further, that the
Evercore Entities or EIF, as the case may be, shall use reasonable
efforts to sell such Eligible Common Stock requested to be registered.
This Section 3(a)(i) shall be applicable for so long as the Eligible
Common Stock cannot be freely transferred pursuant to Rule 144 under
the Securities Act without the imposition of volume, manner of sale and
holding period limitations.
(ii) Each Demand will set forth the number of shares of
Eligible Common Stock proposed to be sold by the Evercore Entities or
EIF, as the case may be, and the intended method of distribution of
such shares.
(iii) In the case of an underwritten public offering of
Eligible Common Stock to be so registered pursuant to a registration
under this Section 3(a), if the managing underwriter
advises the Evercore Entities or EIF, as the case may be, and the
Company in its opinion that the inclusion in such registration of some
or all of such Common Stock requested to be registered (including
without limitation, Common Stock to be registered by the Company
included pursuant to incidental or "piggyback" rights heretofore or
hereafter granted by the Company to Persons other than the Evercore
Entities or EIF, as the case may be) exceeds the number which can be
sold in such offering without a significant adverse effect on the
price, timing or distribution of the Common Stock offering (a
"SIGNIFICANT ADVERSE EFFECT"), the number of Common Stock to be
included in such registration will be reduced as set forth below:
(A) First, the number of shares of Common Stock
requested to be included in such registration by the Evercore
Entities or EIF, as the case may be, shall be included in such
registration, except, in the event that the number of shares
of Common Stock requested to be included in such registration
by the Evercore Entities or EIF, as the case may be, exceeds
the number which, in the opinion of such managing underwriter,
can be sold, then the Company will include in such
registration such lesser number of registrable securities
which is equal to the number which, in the opinion of the
managing underwriter, can be sold by the Evercore Entities or
EIF, as the case may be; and
(B) After all Common Stock requested to be
included in such registration by the Evercore Entities or EIF,
as the case may be, have been so included, the number of
shares of Common Stock requested to be included in such
registration by all parties exercising "piggyback" rights
shall be so included, except, if the number of shares of
Common Stock included as a result of parties exercising
"piggyback" rights exceed the number which, in the opinion of
the managing underwriter can be sold without causing a
Significant Adverse Effect, the shares of Common Stock that
the managing underwriter recommends can be included as
Piggyback Securities in the Registration Statement without
causing a Significant Adverse Effect shall be allocated pro
rata among the persons requesting inclusion of Piggyback
Securities in accordance with the relative number of shares of
Common Stock each person has requested to be sold.
(iv) If (A) any offering or sale of Common Stock by the
Evercore Entities or EIF, as the case may be, pursuant to a
Registration Statement is not consummated due to (1) any material
failure by the Company to perform its obligations under this Agreement
or a material adverse change in its financial position or business or
(2) the withdrawal by the Evercore Entities or EIF, as the case may be,
at any time before or after the Registration Statement has become
effective, and the Evercore Entities or EIF, as the case may be, pay
the registration expenses set forth in Section 6, or (B) 20% or more of
Eligible Common Stock sought to be registered by the Evercore Entities
or EIF, as the case may be, pursuant to any registration under this
Section 3(a) shall be excluded from such registration by reason of the
opinion of the managing underwriter that such inclusion would
significantly adversely affect the price at which the securities can be
sold, then the Demand with respect to which such Registration Statement
was filed shall not be counted as one of the Demands contemplated by
this Section 3(a).
(v) The Company agrees that it will not file a
registration statement under the Securities Act, either for securities
newly issued by the Company (other than a registration statement
relating to (i) an employee benefit or incentive plan of the Company
existing on the date hereof or hereafter adopted by the Board of
Directors or (ii) a merger, consolidation or business combination on a
Form S-4) or for securities held by any of the Company's security
holders other than the Evercore Entities or EIF, as the case may be,
until 90 days after the effective date of any registration statement
filed pursuant to the request of the Evercore Entities or EIF, as the
case may be."
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2. AMENDMENT TO SECTION 9(a) OF THE AGREEMENT. Section 9(a) of
the Agreement is hereby amended and restated in its entirety as follows:
"(a) The investment banker or investment bankers and manager or
managers, if any, that will administer the registration of the Eligible
Common Stock pursuant to a Demand made by the Evercore Entities or EIF,
as the case may be, will be selected by the Evercore Entities or EIF,
as the case may be, subject to the consent of the Company, which
consent shall not be unreasonably withheld."
3. MISCELLANEOUS. (a) COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(a) HEADINGS. The headings in this Amendment are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(c) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO SUCH JURISDICTION'S CONFLICTS OF LAW PROVISIONS.
(d) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(e) ENTIRE AGREEMENT. This Amendment is intended by the parties as
a final expression of their agreement and intended to be complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Amendment supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
ENERGY PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman, President and Chief Executive Officer
EVERCORE CAPITAL PARTNERS, L.P.
By Evercore Partners L.L.C., as General Partner
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By Evercore Partners L.L.C., as General Partner
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By Evercore Partners L.L.C., as General Partner
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:
ENERGY INCOME FUND, LP
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
[SIGNATURE PAGES TO REGISTRATION RIGHTS AGREEMENT]
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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