Exhibit 4.1
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of May 10, 2006 by and among Range Resources Corporation, a Delaware
corporation ("Parent"), and Xxxxxx Energy, Inc., a Delaware corporation
("Xxxxxx"), for the benefit of the Holders (as hereinafter defined).
WHEREAS, concurrently with the execution of this Agreement, Parent is
entering into that certain Agreement and Plan of Merger dated as of May 10, 2006
by and among Parent, Range Acquisition Texas, Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Xxxxxx (the "Merger
Agreement"); capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge with
and into Xxxxxx, with Xxxxxx being the surviving corporation (the "Merger"), on
the terms and conditions set forth in the Merger Agreement and in accordance
with the Delaware General Corporation Law;
WHEREAS, it is a condition to the execution of the Merger Agreement
that Parent grant certain registration rights provided in this Agreement to the
Holders with respect to the shares of common stock, par value $0.01 per share,
of Parent (the "Common Shares") to be received by the Holders in connection with
the Merger; and
WHEREAS, it is a condition to the consummation of the Merger that this
Agreement be effective at, and subject to the occurrence of, the Effective Time.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
and agreements set forth herein, and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, in addition to the other terms defined
herein, the following capitalized defined terms shall have the following
meanings:
"Additional Shares" means shares or other securities issued in respect
of the Common Shares issued by Parent in connection with the Merger by reason of
or in connection with any stock dividend, stock distribution, stock split or
similar issuance.
"Affiliate" shall mean, with respect to any Person, a Person that
directly, or indirectly though one or more intermediaries, controls, is
controlled by, or is under common control with the first mentioned Person.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Business Day" means any day other than a day on which the SEC or the
office of the Delaware Secretary of State is closed.
"Common Shares" shall have the meaning set forth in the recitals to
this Agreement.
"Effective Time" shall have the meaning given to such term in the
Merger Agreement.
"Election" shall mean an Election to receive Common Shares in the
Merger made in accordance with Section 2.1(e) of the Merger Agreement.
"End of Suspension Notice" shall have the meaning set forth in Section
3(a) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Fair Market Value" shall mean the average of the per share closing
price, or the closing sales bid if no sales were reported, of the Common Shares
as quoted by the NYSE for the fifteen (15) consecutive trading days immediately
preceding the date of calculation or if there are no sales or bids for such
date, then the average of the fifteen (15) preceding consecutive trading days
for such sales or bids as reported in The Wall Street Journal or similar
publication.
"First Liquidated Damages Period" shall mean the thirty days following
the second day after the Effective Time, extended by the aggregate number of
days during the period from the date of each Suspension Notice to and including
the date of receipt by the Holders of the related End of Suspension Notice.
"Holder" or "Holders" means any Person who has received stock of
Parent, or become entitled to receive Stock of Parent by making a valid
Election, in the Merger as set forth in the Merger Agreement and who shall have
executed and delivered to Parent an executed Investor Questionnaire.
"Indemnitee" shall have the meaning set forth in Section 12 hereof.
"Investor Questionnaire" shall mean an Investor Questionnaire and
Election Form in the form attached as Exhibit to the Merger Agreement (which
shall include as a part thereof the Addendum Signature Page hereto in the form
or similar structure as attached hereto).
"Liquidated Damages" shall have the meaning set forth in Section 7.2(a)
hereof.
"Merger Agreement" shall have the meaning set forth in the recitals to
this Agreement.
"Merger Sub" shall have the meaning set forth in the recitals to this
Agreement.
"Merger" shall have the meaning set forth in the recitals to this
Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Parent" shall have the meaning set forth in the preamble to this
Agreement.
"Person" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Shares covered by such Registration Statement, and by
all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
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"Registrable Shares" shall mean all Common Shares issued to Holders
pursuant to the Merger and any Common Shares or other securities issued or
issuable in respect of the Common Shares by way of spin-off, dividend or stock
split or in connection with a combination of shares, reclassification, merger,
consolidation or reorganization; provided, however, that such Common Shares
shall not include (i) Common Shares for which a Registration Statement relating
to the sale thereof shall have become effective under the Securities Act and
which have been disposed of, as applicable, under such Registration Statement,
(ii) Common Shares sold pursuant to Rule 144, (iii) Common Shares which
otherwise have been transferred by Holder, for which Parent has delivered a new
certificate not bearing a legend restricting further transfer (or registered
such Common Shares in an uncertificated registration without restriction on
further transfers) and such Common Shares may be resold without subsequent
registration under the Securities Act or (iv) Common Shares eligible for sale
pursuant to Rule 144(k) (or any successor provision) by the Holder.
"Registration Default" shall have the meaning set forth in Section
7.2(a) hereof.
"Registration Expenses" shall mean any and all expenses incident to the
performance of or compliance with this Agreement, including without limitation:
(a) all registration and filing fees; (b) all fees and expenses associated with
a required listing of the Registrable Shares on any securities exchange; (c)
fees and expenses with respect to filings required to be made with the NYSE or
the NASD; (d) fees and expenses of compliance with securities or "blue sky" laws
(including reasonable fees and disbursements of counsel for the underwriters or
holders of securities in connection with blue sky qualifications of the
securities and determination of their eligibility for investment under the laws
of such jurisdictions); (e) printing expenses, messenger, telephone and delivery
expenses; (f) fees and disbursements of counsel for Parent and customary fees
and expenses for independent certified public accountants retained by Parent
(including the expenses of any comfort letters, or costs associated with the
delivery by independent certified public accountants of a comfort letter or
comfort letters, if such comfort letter or comfort letters is required by the
managing underwriter); (g) securities acts liability insurance, if Parent so
desires; (h) all internal expenses of Parent (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties); (i) the expense of any annual audit; (j) the fees and
expenses of any Person, including special experts, retained by Parent; and (k)
the reasonable out-of-pocket expenses of one legal counsel (who shall be
reasonably acceptable to Parent) for the Holders in connection with the
Registration Statements filed by Parent pursuant to this Agreement; provided,
however, that Registration Expenses shall not include, and Parent shall not have
any obligation to pay, any underwriting fees, discounts, or commissions
attributable to the sale of such Registrable Shares, or any legal fees and
expenses of counsel to any Holder (except as specifically provided above).
"Registration Statement" shall mean any registration statement of
Parent that covers the sale or resale of any of the Registrable Shares under the
Securities Act on an appropriate form, and all amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
materials incorporated by reference therein.
"Resale Shelf Registration Expiration Date" shall have the meaning set
forth in Section 2(a) hereof.
"Resale Shelf Registration Statement" shall have the meaning set forth
in Section 2(a) hereof.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision).
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Second Liquidated Damages Period" shall mean the thirty day period
from September 25, 2006 through October 24 2006, extended by the aggregate
number of days during such period from the date of each Suspension Notice to and
including the date of receipt by the Holders of the related End of Suspension
Notice.
"Xxxxxx" shall have the meaning set forth in the recitals to this
Agreement.
"Subsequent Shelf Registration Statement" shall have the meaning set
forth in Section 5 hereof.
"Suspension Event" shall have the meaning set forth in Section 3(a)
hereof.
"Suspension Notice" shall have the meaning set forth in Section 3(b)
hereof.
"WKSI" shall mean a well-known seasoned issuer as defined under Rule
405 of the Securities Act.
2. RESALE REGISTRATION RIGHTS.
(a) Registration Statement Covering Resale of Registrable
Shares. Parent shall (i) file with the SEC, as promptly as practicable following
the Effective Time, but in any event within two (2) Business Days thereafter, or
(ii) have filed with the SEC prior to the Effective Time a shelf registration
statement (the "Resale Shelf Registration Statement") pursuant to Rule 415 under
the Securities Act pursuant to which all of the Registrable Shares may be
included (on the initial filing or by supplement thereto) to enable the public
resale on a delayed or continuous basis of such Registrable Shares by the
Holders. Parent represents and warrants to Xxxxxx and the Holders that Parent is
a WKSI. The Resale Shelf Registration Statement shall be filed on Form S-3 and
shall utilize Form S-3 or the automatic shelf registration process under Rule
415 and Rule 462 under the Securities Act. If Parent loses its status as a WKSI
or becomes otherwise ineligible to utilize the automatic shelf registration
process, then Parent shall file the Resale Shelf Registration Statement on such
form as Parent may then utilize and use its commercially reasonable efforts to
have the Resale Shelf Registration Statement declared effective under the
Securities Act as soon as practicable. Parent agrees to use its commercially
reasonable efforts to maintain the effectiveness of the Resale Shelf
Registration Statement, including by filing any necessary post-effective
amendments and prospectus supplements, or, alternatively, by filing new
registration statements relating to the Registrable Shares as required by Rule
415 under the Securities Act, continuously until the date (the "Resale Shelf
Registration Expiration Date") which is the earliest of (i) one (1) year
following the later of (A) the Effective Time or (B) the date of effectiveness
of the Resale Shelf Registration Statement, or (ii) the date on which Holders no
longer hold any Registrable Shares.
(b) Inclusion of Registrable Shares. Upon a Holder becoming
eligible to have Registrable Shares held by such Holder included in the Resale
Shelf Registration Statement by delivery to Parent (or the Exchange Agent under
the Merger Agreement) of a properly completed Investor Questionnaire, effecting
a valid Election and the final determination of the number of Registrable Shares
to be issued to such Holder pursuant to the Merger Agreement, Parent shall,
within five Business Days thereafter, file a post-effective amendment or a
Prospectus supplement, as applicable, to the Resale Shelf Registration Statement
to name such Holder as a selling stockholder therein and include therein all
Registrable Shares issued to or known to be issuable to such Holder pursuant to
the Merger; provided, however, that Parent shall not be required to file a
post-effective amendment or Prospectus supplement, as applicable, solely for the
purpose of adding Holders of Registrable Shares held by Holder more often than
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once each calendar week during the first four calendar weeks following the
Effective Time and thereafter no more often than once in each calendar month.
(c) Notification and Distribution of Materials. Parent shall
notify the Holders of the effectiveness of any Registration Statement applicable
to the Registrable Shares and shall furnish to the Holders, without charge, such
number of copies of the Registration Statement (including any amendments,
supplements and exhibits), the Prospectus contained therein (including each
preliminary prospectus and all related amendments and supplements) and any
documents incorporated by reference in the Registration Statement or such other
documents as the Holders may reasonably request in order to facilitate the sale
of the Registrable Shares in the manner described in the Registration Statement.
(d) Amendments and Supplements. Subject to Section 2.1(b), (i)
Parent shall promptly prepare and file with the SEC from time to time such
amendments and supplements to the Registration Statement and Prospectus used in
connection therewith as may be necessary to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all the Registrable Shares until the Resale Shelf
Expiration Date and (ii) upon five (5) Business Days' notice, Parent shall file
any supplement or post-effective amendment to the Registration Statement with
respect to the plan of distribution or a Holder's ownership interests in his,
her or its Registrable Shares that is reasonably necessary to permit the sale of
such Holder's Registrable Shares pursuant to the Registration Statement.
(e) Notice of Certain Events. Parent shall promptly and in any
event within three (3) Business Days notify the Holders of, and confirm in
writing, any request by the SEC for any amendment or supplement to, or
additional information in connection with, any Registration Statement required
to be prepared and filed hereunder (or Prospectus relating thereto). Parent
shall promptly and in any event within three (3) Business Days notify each
Holder of, and confirm in writing, the filing of the Registration Statement or
any Prospectus, amendment or supplement related thereto or any post-effective
amendment to the Registration Statement and the effectiveness of any
post-effective amendment.
(f) Stop Orders. During the period referred to in Section
2(a), Parent shall use its commercially reasonable efforts to avoid the issuance
of, or if issued, to obtain the withdrawal of, any order enjoining or suspending
the use or effectiveness of a Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Registrable Shares
for sale in any jurisdiction, as promptly as practicable.
3. SUSPENSION OF REGISTRATION REQUIREMENT; RESTRICTION ON SALES.
(a) Subject to the provisions of this Section 3 and a good
faith determination by Parent that it is in the best interests of Parent to
suspend the use of any Resale Shelf Registration Statement, following the
effectiveness of such Resale Shelf Registration Statement (and the filings with
any international, federal or state securities commissions), Parent, by written
notice to the Holders, may direct the Holders to suspend sales of the
Registrable Shares pursuant to such Resale Shelf Statement for such times as
Parent reasonably may determine is necessary and advisable (but in no event for
more than 45 days in any 90-day period or more than 90 days in any 12-month
period), if there shall be pending discussions relating to, or the consummation
of, a transaction or the occurrence of an event (x) that would require
additional disclosure of material information by Parent in the Resale Shelf
Registration Statement (or such filings) and which has not been so disclosed,
(y) as to which Parent has a bona fide business purpose for preserving
confidentiality, or (z) that renders Parent unable to comply with Commission
requirements, in each case under circumstances that would make it impractical or
inadvisable to promptly amend or supplement the Resale Shelf Registration
Statement (provided that each Holder acknowledges that a bona fide financing or
business transaction that implicates any of the foregoing clause (x), clause (y)
or clause (z) shall be deemed to constitute a circumstance that makes it
impracticable or inadvisable to
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so promptly amend or supplement the Resale Shelf Registration Statement) on a
post-effective basis, as applicable (a "Suspension Event"). Upon the earlier to
occur of (i) Parent delivering to the Holders an End of Suspension Notice, as
hereinafter defined, or (ii) the end of the maximum permissible suspension
period, Parent shall use its commercially reasonable efforts to promptly amend
or supplement the Resale Shelf Registration Statement on a post-effective basis,
if necessary, or to take such action as is necessary so as to permit the Holders
to resume sales of the Registrable Shares as soon as possible.
(b) Upon a Suspension Event, Parent shall give written notice
(a "Suspension Notice") to the Holders to suspend sales of the Registrable
Shares, and such notice shall state that such suspension shall continue only for
so long as the Suspension Event or its effect is continuing and Parent is
pursuing with reasonable diligence the completion of the matter giving rise to
the Suspension Event or otherwise taking all reasonable steps to terminate
suspension of the effectiveness of the Registration Statement as promptly as
possible. No Holder shall effect any sales of the Registrable Shares pursuant to
such Registration Statement (or such filings) at any time after it has received
a Suspension Notice and prior to receipt of an End of Suspension Notice (as
defined below). The Holders may recommence effecting sales of the Registrable
Shares under the Registration Statement (or such filings) following further
notice to such effect (an "End of Suspension Notice") from Parent, which End of
Suspension Notice shall be given by Parent to the Holders in the manner
described above promptly following the conclusion of any Suspension Event and
its effect.
(c) Notwithstanding any provision herein to the contrary, if
Parent gives a Suspension Notice pursuant to this Section 3 with respect to the
Resale Shelf Registration Statement, Parent shall extend the period during which
such Resale Shelf Registration Statement shall be maintained effective under
this Agreement by the number of days during the period from the date of the
giving of the Suspension Notice to and including the date when Parent shall have
given the End of Suspension Notice and copies of the supplemented or amended
Prospectus necessary to resume sales; provided such period of time shall not be
extended beyond the date that Common Shares are not Registrable Shares.
4. SUBSEQUENT SHELF REGISTRATION FOR ADDITIONAL SHARES ISSUED AFTER
EFFECTIVENESS OF THE RESALE SHELF REGISTRATION STATEMENT. If any Additional
Shares are issued or distributed to Holders after the later of (i) the
effectiveness of the Resale Shelf Registration Statement or (ii) the Effective
Time, or such Additional Shares were otherwise not included in a prior
Registration Statement, then Parent shall as soon as practicable, at the option
of Parent and subject to compliance with Section 2(b) with respect to the Holder
of the Registrable Shares with respect to which such Additional Shares are
issued, either (A) file an additional shelf registration statement (including
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement, a "Subsequent Shelf
Registration Statement") covering such Additional Shares on behalf of the
Holders thereof in the same manner, and subject to the same provisions in this
Agreement as the Resale Shelf Registration Statement or (B) file a supplement to
the Resale Shelf Registration Statement to include therein and cover such
Additional Shares on behalf of the Holders.
5. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC that may permit the sale of the
Registrable Shares to the public without registration, Parent agrees to, so long
as any Holder owns any Registrable Shares:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144(c) under the Securities Act;
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(b) use its commercially reasonable efforts to file with the
SEC in a timely manner all reports and other documents required to be filed by
Parent under the Securities Act and the Exchange Act; and
(c) furnish to any Holder promptly upon request a written
statement by Parent as to its compliance in all material respects with the
reporting requirements of Rule 144 and of the Exchange Act, furnish or make
available to any Holder a copy of the most recent annual or quarterly report of
Parent, and such other reports and documents of Parent, and take such reasonable
further actions consistent with this Section 5, as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing a
Holder to sell any such Registrable Shares without registration.
6. LIQUIDATED DAMAGES.
(a) If:
(i) the Resale Shelf Registration Statement is not
filed with the SEC prior to or on the second Business Day after the Effective
Time;
(ii) the Resale Shelf Registration Statement is not
effective prior to or on the second Business Day after the Effective Time;
(iii) a supplement to the Prospectus included in the
Resale Shelf Registration Statement (which prospectus supplement shall include
all of the Holders not previously included in the Resale Shelf Registration
Statement and with respect to which the conditions of Section 2(b) of this
Agreement shall have been complied with and the number of Registrable Shares to
be sold by each such Holder in the selling stockholder portion of such
Prospectus) is not filed with the SEC prior to or on the fifth business day
after the later of (A) Effective Time or (B) the date on which the conditions of
Section 2(b) of this Agreement shall have been complied with respect to such
Holder; or
(iv) the Resale Shelf Registration Statement becomes
effective under the Securities Act but (A) the Resale Shelf Registration
Statement thereafter ceases to be effective or (B) as specified in Section 3(a),
the Resale Shelf Registration Statement or the Prospectus ceases to be usable in
connection with resales of Registrable Shares, in the case of (A) or (B) within
the First Liquidated Damages Period or the Second Liquidated Damages Period and
Parent fails to (1) other than in the case of a Suspension Event under Section
3, cause the Resale Shelf Registration Statement to again become effective or
the Resale Shelf Registration Statement or Prospectus to become usable within
five Business Days by a Prospectus supplement, post-effective amendment or a
report filed pursuant to the Exchange Act or (2) if applicable, terminate the
suspension period described in Section 3(a) by the 45th or the 90th day, as
applicable,
(each such event referred to in foregoing clauses (i) through (iv), a
("Registration Default")), Parent agrees to pay cash damages ("Liquidated
Damages") to a Holder if such Holder, after the occurrence and during the
continuation of a Registration Default, notifies Parent in writing (a "Default
Sale Notice") that it desires to sell its Registrable Shares (which Default Sale
Notice shall include the number of Registrable Shares held by such Holder and
the number of Registrable Shares such Holder desires to sell), as follows:
(A) if the Fair Market Value as of the date
on which the Registration Default ceases to exist (or, if
earlier, the date on which such Holder actually disposes of
such Registrable Shares) is less than the Fair Market Value as
of the date the Default Sale Notice is given to Parent, Parent
shall pay to such Holder an amount equal to the product of:
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(1) the sum of (i) the excess of (x)
the Fair Market Value as of the date the Default Sale
Notice is given to Parent over (y) the Fair Market
Value as of the date on which the Registration
Default ceases to exist (or, if earlier, the date of
such disposition) (as set forth in the Default Sale
Notice that Holder desired to sell), and
(ii) an amount per share
accruing at 6% per annum of the Fair Market Value as
of the date the Default Sale Notice is given to
Parent for the period from the date the Default Sale
Notice is given to Parent to the date on which the
Registration Default ceases to exist (or, if earlier,
the date of disposition) (the "Interest Amount")
multiplied by
(2) the number of Registrable Shares
as set forth in the Default Sale Notice that such
Holder desired to sell (or, if such Holder disposed
of all or a portion of its Registrable Shares in
advance of the cessation of a Registration Default,
the number of shares disposed of, up to the number as
set forth in the Default Sale Notice that Holder
desired to sell); or
(B) if the Fair Market Value on the date
which the Registration Default ceases to exist (or, if
earlier, the date on which such Holder actually disposes of
such Registrable Shares) is greater than the Fair Market Value
as of the date the Default Sale Notice is given to Parent
(such excess amount herein referred to as the "Profit
Amount"), Parent shall pay to Holder an amount equal to the
product of
(1) the excess of (x) the Interest
Amount over (y) the Profit Amount multiplied by
(2) the number of Registrable
Shares as set forth in the Default Sale Notice that such
Holder desired to sell (or, if such Holder disposed of all or
a portion of its Registrable Shares in advance of the
cessation of a Registration Default, the number of shares
disposed of, up to the number as set forth in the Default Sale
Notice that Holder desired to sell);
(b) This Section 6 shall set forth sole and exclusive remedy
of Holders with respect to a Registration Default. Upon payment of Liquidated
Damages with respect to any Registrable Shares held by a Holder, such Holder
shall continue to be entitled to its rights under this Agreement, other than
this Section 6, with respect to such Registrable Shares but shall not have any
further rights under this Section 6 with respect to such Registrable Shares with
respect to which such Liquidated Damages shall have been paid. For purposes of
this Section 6, a Registration Default shall be deemed to cease with respect to
a Registrable Share upon the date such Registrable Share ceases to constitute a
Registrable Share.
7. STATE SECURITIES LAWS. Subject to the conditions set forth in this
Agreement, Parent shall, in connection with the filing of any Registration
Statement hereunder, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "blue sky" laws of such
states as the Holders may reasonably request in connection with the offer and
sale of Registrable Shares pursuant to the intended methods of disposition by
the Holders as set forth in the applicable Registration Statement, and Parent
shall use its commercially reasonable efforts to cause such filings to become
effective in a timely manner; provided, however, that Parent shall not be
obligated to qualify as a foreign corporation to do business under the laws of
any such state in which it is not then qualified or to file any general consent
to service of process in any such state. Once effective, Parent shall use its
commercially
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reasonable efforts to keep such filings effective until the earlier of (a) such
time as all of the Registrable Shares have been disposed of in accordance with
the intended methods of disposition by the Holders as set forth in the
applicable Registration Statement, (b) in the case of a particular state, the
applicable Holders have notified Parent that they no longer require an effective
filing in such state in accordance with their original request for filing or (c)
the date on which the applicable Registration Statement ceases to be effective.
8. LISTING. Parent will cause all Registrable Shares to be listed or
otherwise eligible for full trading privileges on the principal national
securities exchange (currently NYSE) on which the Common Shares are then listed
or quoted, not later than the date on which the Registrable Shares are issued by
Parent to a Holder. Parent will use its commercially reasonable efforts to
continue the listing or trading privilege for all Registrable Shares on such
exchange. Parent will as promptly as practicable notify the Holders of, and
confirm in writing, the delisting of the Common Shares by such exchange.
9. EXPENSES. Parent shall bear all Registration Expenses incurred in
connection with the registration of the Registrable Shares pursuant to this
Agreement and Parent's performance of its other obligations under the terms of
this Agreement. The Holders shall bear all underwriting fees, discounts or
commissions attributable to the sale of securities by the Holders, or any legal
fees and expenses of counsel to the Holders (except as otherwise specifically
provided herein) and all other expenses incurred in connection with the
performance by the Holders of their obligations under the terms of this
Agreement.
10. INDEMNIFICATION BY PARENT. Parent agrees to indemnify the Holders
and, if a Holder is a Person other than an individual, such Holder's officers,
directors, employees, agents, representatives and Affiliates, and each Person,
if any, that controls a Holder within the meaning of the Securities Act, and
each other Person, if any, subject to liability because of his, her or its
connection with a Holder (each, an "Indemnitee"), against any and all losses,
claims, damages, actions, liabilities, costs and expenses (including without
limitation reasonable fees, expenses and disbursements of attorneys and other
professionals), joint or several, arising out of or based upon any violation by
Parent of any rule or regulation promulgated under the Securities Act applicable
to Parent and relating to action or inaction required of Parent under the terms
of this Agreement or in connection with any Registration Statement or
Prospectus, or upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement or any Prospectus, or 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 under
which they were made, not misleading; provided, that Parent shall not be liable
to such Indemnitee or any Person who participates as an underwriter in the
offering or sale of Registrable Shares or any other Person, if any, who controls
such underwriter within the meaning of the Securities Act, 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 (a) an untrue
statement or alleged untrue statement or omission or alleged omission (1) made
in such Registration Statement or in any such Prospectus in reliance upon and in
conformity with information regarding such Indemnitee or its plan of
distribution or ownership interests which was furnished in writing to Parent
pursuant to an Investor Questionnaire or otherwise expressly for use in
connection with such Registration Statement or the Prospectus contained therein
by such Indemnitee, (2) made in any preliminary prospectus if the Holder failed
to deliver or make available (in a manner permitted by applicable securities
laws to constitute delivery) a copy of the Prospectus with or prior to delivery
of written confirmation of the sale by the Holder to the party asserting the
claim and such Prospectus would have corrected such untrue statement or
admission or (3) made in any Prospectus if any untrue statement or omission was
corrected in an amendment or supplement to such Prospectus delivered to the
Holder prior to the sale of Registrable Shares and the Holder failed to deliver
or make available (in a manner permitted by applicable securities laws to
constitute delivery) such amendment or supplement prior to or concurrently with
the sale of Registrable Shares to the party asserting the claim or (b) any sales
by any Holder after the delivery by Parent to such Holder of a Suspension Notice
and before
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the delivery by Parent of an End of Suspension Notice. The indemnity provided
for herein shall remain in full force and effect regardless of any investigation
made by or on behalf of any Indemnitee.
11. COVENANTS OF HOLDERS. Each of the Holders hereby agrees (i) to
cooperate with Parent and to furnish to Parent all such information concerning
its plan of distribution and ownership interests with respect to its Registrable
Shares in connection with the preparation of a Registration Statement with
respect to such Holder's Registrable Shares and any filings with any state
securities commissions as Parent may reasonably request (and Parent may exclude
from any registration pursuant hereto the Registrable Shares of any Holder who
fails to furnish such information within a reasonable time after receiving such
request), (ii) to indemnify Parent, its officers, directors, employees, agents,
representatives and Affiliates, and each Person, if any, who controls Parent
within the meaning of the Securities Act, and each other Person, if any, subject
to liability because of his, her or its connection with Parent, against any and
all losses, claims, damages, actions, liabilities, costs and expenses arising
out of or based upon any untrue statement or alleged untrue statement of
material fact contained in either such Registration Statement or the Prospectus
contained therein, or 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 under which they were made, not
misleading, if and to the extent that such statement or omission occurs from
reliance upon and in conformity with written information regarding such Holder,
his, her or its plan of distribution or his, her or its ownership interests,
which was furnished to Parent in writing by such Holder pursuant to an Investor
Questionnaire or otherwise expressly for use therein unless such statement or
omission was corrected in writing to Parent prior to the date one day prior to
the date of the final Prospectus (as supplemented or amended, as the case may
be).
12. INDEMNIFICATION PROCEDURES. Any Person entitled to indemnification
under this Agreement shall notify promptly the indemnifying party in writing of
the commencement of any action or proceeding with respect to which a claim for
indemnification may be made hereunder, but the failure of any indemnified party
to provide such notice shall not relieve the indemnifying party of its
obligations hereunder, except to the extent the indemnifying party is materially
prejudiced thereby and shall not relieve the indemnifying party from any
liability which it may have to any indemnified party otherwise than hereunder.
In case any action or proceeding is brought against an indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, unless in the
reasonable opinion of outside counsel to the indemnified party a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, to assume the defense thereof (alone or jointly with any other
indemnifying party similarly notified), to the extent that it chooses, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party that it so chooses (provided
that in connection with such assumption the indemnifying parties provide the
indemnified parties a full release of any costs or other expenses in connection
therewith), the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof; provided, however, that (a) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the action or proceeding within twenty (20) Business Days after receiving notice
from such indemnified party that the indemnified party believes it has failed to
do so; or (b) if such indemnified party who is a defendant in any action or
proceeding which is also brought against the indemnifying party shall have
reasonably concluded, based on the advice of counsel, that there may be one or
more legal defenses available to such indemnified party which are not available
to the indemnifying party; or (c) if representation of both parties by the same
counsel is otherwise inappropriate under applicable standards of professional
conduct, then, in any such case, the indemnified party shall have the right to
assume or continue its own defense as set forth above (but with no more than one
firm of counsel for all indemnified parties in each jurisdiction) and the
indemnifying party shall be liable for any expenses therefor. No indemnifying
party shall, without the written consent of the indemnified party (which shall
not be unreasonably withheld), effect the settlement or compromise of, or
consent to the
10
entry of any judgment with respect to, any pending or (to the knowledge of the
indemnifying party) threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim, (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party and
(iii) does not and is not likely to materially adversely effect the indemnified
party.
13. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, Parent shall not, without the prior written consent of
the Holders of a majority of the then outstanding Registrable Shares, enter into
any agreement with any holder or prospective holder of any securities of Parent
that would allow such holder or prospective holder to include such securities in
the Resale Shelf Registration Statement filed pursuant to the terms hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of Registrable Shares of
the Holders that is included.
14. CONTRIBUTION.
(a) If the indemnification provided for in Section 10 and
Section 11 is unavailable to an indemnified party with respect to any losses,
claims, damages, actions, liabilities, costs or expenses referred to therein or
is insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, actions, liabilities, costs or expenses as well as any
other relevant equitable considerations. The relative fault of the indemnifying
party, on the one hand, and of the indemnified party, on the other hand, shall
be determined by reference to, among other factors, whether the untrue or
alleged untrue statement of a material fact or 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; provided, however,
that in no event shall the obligation of any indemnifying party to contribute
under this Section 14 exceed the amount that such indemnifying party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 10 or Section 11 hereof had been available under the
circumstances.
(b) Parent and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 14 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph.
(c) Notwithstanding the provisions of this Section 14, no
Holder shall be required to contribute any amount in excess of the amount by
which the gross proceeds from the sale of Registrable Shares exceeds the amount
of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
15. AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified, or supplemented or waived without the prior written consent
of Parent and Holders of a majority of the aggregate of the outstanding
Registrable Shares.
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16. NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given when and if delivered personally or sent by
facsimile (with respect to notice by facsimile, on a Business Day between the
hours of 8:00 a.m. and 5:00 p.m., Dallas, Texas time), five (5) Business Days
after being sent if mailed by registered or certified mail (return receipt
requested), postage prepaid, or upon receipt if sent by courier or overnight
delivery service to the respective parties at the following addresses (or at
such other address for any party as shall be specified by like notice, provided
that notices of a change of address shall be effective only upon receipt
thereof), and further provided that in case of directions to amend the
Registration Statement pursuant to Section 11, the Holder must confirm such
notice in writing by overnight express delivery with confirmation of receipt:
If to Parent:
Range Resources Corporation
000 Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to the Holders, at the most current address given to Parent for each Holder
(or the nominee holder of record for such Holder) by the transfer agent and
registrar of the Common Shares of Parent.
17. SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. Neither Parent,
the Company or any Holder shall be entitled to assign any of its rights or
obligations under this Agreement without, in the case of Parent, the consent of
a majority of the aggregate number of the outstanding Registrable Shares or, in
the case of any Holder, upon the prior written consent of Parent (which consent
Parent may withhold in its sole discretion); and no Transferee of any
Registrable Shares shall be entitled to any rights under this Agreement. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties hereto and shall inure to the benefit
of each Holder. Parent agrees that the Holders shall be third party
beneficiaries to the agreements made hereunder by Xxxxxx and Parent, and each
Holder shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights hereunder;
provided, however, that such Holder fulfills all of its obligations hereunder.
18. COUNTERPARTS. This Agreement 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.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas applicable to contracts made and
to be performed wholly within said State.
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20. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
21. ENTIRE AGREEMENT. This Agreement and the Merger Agreement, are
intended by the parties as a final expression of their agreement and intended to
be the complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to such subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
22. REGISTRABLE SHARES HELD BY PARENT OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable Shares
is required hereunder, Registrable Shares held by Parent or its Affiliates shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
23. SURVIVAL. The indemnification and contribution obligations under
Section 10, Section 11 and Section 14 shall survive the termination of Parent's
obligations under Section 2(a).
24. DRAFTING CONVENTIONS; NO CONSTRUCTION AGAINST DRAFTER. (a) The
headings in this Agreement are provided for convenience and do not affect its
meaning. The words "include", "includes" and "including" are to be read as if
they were followed by the phrase "without limitation". Unless specified
otherwise, any reference to an agreement means that agreement as amended or
supplemented, subject to any restrictions on amendment contained in such
agreement. Unless specified otherwise, any reference to a statute or regulation
means that statute or regulation as amended or supplemented from time to time
and any corresponding provisions of successor statutes or regulations. If any
date specified in this Agreement as a date for taking action falls on a day that
is not a business day, then that action may be taken on the next business day.
Unless specified otherwise, the words "party" and "parties" refer only to a
named party to this Agreement. (b) The parties have participated jointly with
their respective counsel in the negotiation and drafting of this Agreement. If
an ambiguity or question of intent or interpretation arises, this Agreement is
to be construed as if drafted jointly by the parties and there is to be no
presumption or burden of proof favoring or disfavoring any party because of the
authorship of any provision of this Agreement.
25. CONTINUITY OF INTEREST DETERMINATION. In no event will the
aggregate Liquidated Damages and other damages that are paid in cash under this
Agreement exceed an amount that would prevent the Merger from satisfying the
continuity of interest requirement under Treas. Reg. Section 1.368-1(e). Such
continuity of interest determination shall be made by the Tax counsel that
delivered the opinion of counsel described in Section 6.1(c) of the Merger
Agreement or such other Tax counsel as may be selected by Parent in its
reasonable discretion. To the extent that Liquidated Damages and such other
damages cannot be paid in cash, they will be promptly paid in Common Shares
using the Fair Market Value on the dates that they accrue. Notwithstanding the
foregoing, if Xxxxxx does not receive the opinion of counsel described in
Section 6.1(c) of the Merger Agreement, then this Section 25 shall not apply and
shall have no effect.
26. OTHER REGISTRATION RIGHTS AGREEMENTS. Effective as of the Effective
Time, this Agreement replaces and supersedes in its entirety all rights of each
Holder under or pursuant to (a) the Second Amended and Restated Registration
Rights Agreement, dated as of September 21, 2005, between Xxxxxx and the parties
listed on the signature page thereto, and (b) the Registration Rights Agreement,
13
dated as of September 22, 2005, between Xxxxxx and Xxxxxxx Xxxxx & Associates,
Inc., which agreements shall terminate and be of no force or effect, and Xxxxxx
shall have no further obligations thereunder, with respect to any Holder as of
the Effective Time.
27. TERMINATION. This Agreement shall terminate, and neither Parent,
Xxxxxx nor the Holders shall have any rights or obligations hereunder, and this
Agreement shall become null and void and have no effect, upon the termination of
the Merger Agreement in accordance with its terms.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
RANGE RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
XXXXXX ENERGY, INC. (for the benefit of the
Holders)
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: President & CEO
-----------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Registration Rights Addendum
Signature Page
By execution hereof, the undersigned hereby agrees to be bound by the
terms and provisions of the Registration Rights Agreement executed by Range
Resources Corporation and Xxxxxx Energy, Inc. (for the benefit of the Holders
defined therein) dated __________________, 2006, to be effective upon the
consummation of the merger of Range Acquisition Texas, Inc. with and into Xxxxxx
Energy, Inc., as a Holder under such agreement, to the same extent as if the
undersigned were a Party thereto.
HOLDER:
--------------------------
Holder's Name:
--------------------------
Authorized Signature:
--------------------------
Name:*
-------------------
Title:*
-------------------
Date:
-------------------
*If Holder is other than an individual
