REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
February 11, 2000, by and between Tipperary Corporation, its successors and
assigns (the "Company"), and X. X. Xxxxxxx (the "Holder").
WHEREAS, this Agreement is made in connection with the sale to Holder of
three hundred seventy five thousand (375,000) shares of the common stock of the
Company (the "Shares") pursuant to that certain Purchase and Sale Agreement
effective as of January 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.
(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, the
expenses related to listing the Registrable Shares for trading on the same
market as the Company's common stock, 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) DEMAND 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, or if rights hereunder are
transferred pursuant to Section 1.09 hereof, the Holders of a majority of the
Registrable Securities, 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 of the Company's common stock by the
Company 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, but no later than 45 days 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
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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 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 100 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.
If the Holder chooses to sell the Registrable Securities in an underwritten
offering, the Holder shall select the underwriter. The registration statement
filed pursuant to the request of the Holder may include other securities of the
Company and may include securities of the Company being sold for the account of
the Company or others only to the extent the underwriter determines, in its
reasonable judgment, that the addition of such securities would not adversely
effect the offering.
(b) PIGGYBACK REGISTRATION RIGHTS.
(i) If the Company at any time proposes to register any of its Common
Stock under the Securities Act (other than registrations on Forms
S-4 or S-8 or any successor forms thereto or registrations of
securities in connection with a Rule 145 transaction), whether of
its own accord or at the request of an holder or holders of its
securities it shall each such time promptly give written notice
to all Holders of its intention to do so.
(ii) Upon the written request of a Holder delivered to the Company
within 10 business days after receipt of any such notice, the
Company shall use its best efforts (subject to the provisions of
this Section 1.02(b)) to cause all Registrable Securities, the
Holders of which shall have so requested registration thereof, to
be registered under the Securities Act, all to the extent
requisite to permit the sale or other disposition by the Holder
of such Registrable Securities; provided however, the Company may
elect not to file a registration statement pursuant to this
Section 1.02(b) at any time prior to the effective date thereof.
(iii) If the lead managing underwriter for the respective offering
advises that marketing factors require the exclusion from such
registration of some or all of the Registrable Securities sought
to be registered by the Holder or that the total number of
securities to be registered by the Holder should be limited due
to marketing factors, the number of
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Registrable Securities sought to be registered by such Holder and
such other selling shareholders shall be reduced pro rata.
(c) 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 self 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 Selling Expenses relating to securities registered on behalf of 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 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;
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(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 reasonably
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 may make such filings.
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
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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 the Holder or
such underwriter, as the case may be, for the specific purpose of including such
information in such registration statement, prospectus or other document.
(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 expenses reasonably incurred by them in
connection with investigating, preparing or defending any such claims, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged omission) was contained in written
information furnished to the Company by the Holder for the specific purpose of
including such information in such registration statement, prospectus or other
document.
(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
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
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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 AGREEMENT. In 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 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 such
underwriters for such period of time from the effective date of such
registration the underwriters may specify, but not to exceed 180 days; 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
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agreements. Notwithstanding any provision in this Agreement to the contrary,
Holder shall not be required to agree to any of the foregoing lockup provisions
of this Section 1.06 after two years from the date hereof.
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; provided, however, that any action by the "Holder" hereunder shall
require the consent of such persons holding a majority of the Registrable
Securities.
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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.
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: X. X. Xxxxxxx,
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, 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.
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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
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx President and
Chairman of the Board
HOLDER
/s/ X. X. Xxxxxxx
------------------------------------
X. X. Xxxxxxx
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