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EXHIBIT 10.29
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated February
26, 1997 and effective as of the Effective Date (defined below), is made by and
among XXXXXXX EXPLORATION COMPANY, a Delaware corporation ("COMPANY"), GENERAL
ATLANTIC PARTNERS III, L.P., a Delaware limited partnership ("GAP"),
GAP-XXXXXXX PARTNERS, L.P., a Delaware limited partnership ("GBP")
(collectively, GAP and GBP and their respective successors and assigns are
referred to as the "GAP PARTIES"), RIMCO PARTNERS, X.X. XX ("RPII"), RIMCO
PARTNERS, L.P. III ("RPIII") and RIMCO PARTNERS, X.X. XX ("RPIV")(collectively,
RPII, RPIII and RPIV and their respective successors and assigns are referred
to as "RIMCO") XXX X. XXXXXXX ("BMB"), XXXX X. XXXXXXX ("ALB") (collectively,
BMB and ALB and their respective successors and assigns are referred to as the
"BRIGHAMS") and XXXXXX X. XXXXXX ("HDC"), XXXXX X. XXXXXXX ("CMF"), XXXXX X.
XXXXXXX ("DTB") and XXX X. XXXXX ("JLG")(collectively, HDC, CMF, DTB and JLG
and their respective successors and assigns are referred to herein as the
"OTHER XXXXXXX PARTIES") (collectively, the GAP Parties, RIMCO, the Brighams
and the Other Xxxxxxx Parties are referred to herein as "OWNERS").
Capitalized terms used herein which are not otherwise defined shall
have the meanings set forth for such terms in Section 3.
1. Background. The Owners own, directly or indirectly,
or have the right to acquire interests in Xxxxxxx Oil & Gas, L.P. ("PARTNERSHIP
INTERESTS"). The Agreement of Limited Partnership, as amended (the "PARTNERSHIP
AGREEMENT") of Xxxxxxx Oil & Gas, L.P. (the "PARTNERSHIP") provides that the
Owners shall have certain registration rights with respect to the Partnership
Interests or in the event of a conversion of the Partnership to corporate form,
any capital stock into or for which the Partnership Interests are converted or
exchanged. The Company and the Owners are parties to that certain Exchange
Agreement dated as of February 26, 1997 (the "EXCHANGE AGREEMENT"), pursuant to
which the Owners will exchange Partnership Interests (or securities convertible
into Partnership Interests) and the stock of the general partner of the
Partnership for shares of the Company's common stock, par value $.01 per share
(the "COMPANY COMMON STOCK"), as more fully described in the Exchange Agreement
(the "PROPOSED EXCHANGE"). The parties hereto desire to enter into this
Agreement in order to give effect to the registration rights of the Owners
under the Partnership Agreement by granting to the Owners registration rights
with respect to the Company Common Stock. The execution and delivery of this
Agreement is a condition to the consummation of the Proposed Exchange. This
Agreement shall be effective as of the date of the closing of the Proposed
Exchange (the "EFFECTIVE DATE").
2. Registration under Securities Act.
2.1. Incidental Registration. If the Company at any time after
the Initial Registration Date proposes to register any Transfer of its
Registrable Securities under the Securities Act for its own account or for the
account of a security holder (other than a registration relating to employee
benefit plans, the acquisition of another company or business, an exchange
offer solely for already outstanding securities of the Company, or a
registration on a form that
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does not require substantially the same information that would be required in a
registration statement covering a Transfer of Registrable Securities held by an
Owner), the Company will each such time give prompt written notice to all
holders of Registrable Securities (herein collectively called the "PROSPECTIVE
SELLERS") of its intention to do so. Upon the written notification by any
Prospective Seller of an intention to register a Transfer of Registrable
Securities under this Section 2.1 (stating the intended method of Transfer of
such Registrable Securities by such Prospective Seller and the number of
Registrable Securities to be transferred), given within twenty (20) days after
receipt of any such notice from the Company, the Company will cause such
intended Transfer of all Registrable Securities of which any such Prospective
Sellers shall have given such notice to be registered under the Securities Act.
The Company shall have the right to reduce or eliminate Registrable Securities
of a Prospective Seller to be included pursuant to exercise of its incidental
rights under this Section 2.1 in an underwritten offering by the Company if, in
the good faith opinion of the managing underwriter, supported by written
reasons therefor, the inclusion of such shares would raise a substantial doubt
as to whether the proposed offering could be successfully consummated. Any
reduction of Registrable Securities to be included in an incidental
registration pursuant to the immediately preceding sentence shall be made pro
rata among the Prospective Sellers thereof requesting such incidental
registration on the basis of the percentage of the Registrable Securities of
the Company held by the holders of Registrable Securities which have requested
that such securities be included; provided, a Demand Holder requiring
registration pursuant to Section 2.2 of this Agreement shall not be subject to
the foregoing reduction. The Company shall include in such a registration all
of the Registrable Securities requested by the Prospective Sellers to be
included in such registration that are not eliminated from such registration by
the underwriters. In the case of an underwritten public offering by the
Company, each Prospective Seller participating in such incidental registration
shall, if requested by the managing underwriter, agree not to Transfer any
securities of the Company held by such Prospective Seller to any person other
than such underwriter for a period of up to thirty (30) days following the
effective date of the registration statement relating to such offering or such
longer period as may be reasonably requested by such underwriter, but in no
event to exceed ninety (90) days, and the Company hereby covenants that it
will, thereafter, take whatever actions (including amendment of its
registration statement) as shall be reasonably necessary to enable such
Prospective Seller to register a Transfer of any such securities at such time.
2.2. Required Registration. Subject to the provisions of
Section 2.3, whenever the Company shall be requested by a Demand Holder to
effect the registration under the Securities Act of any specified Transfer of
Registrable Securities, which right may not be exercised prior to the Initial
Registration Date, the Company shall promptly give written notice of such
proposed registration to all Prospective Sellers and thereupon shall, as
expeditiously as possible, use its best efforts to effect the registration
under the Securities Act of any such Transfer of Registrable Securities which
any Prospective Seller has requested to be registered. If the Company shall
notify Prospective Sellers within five business days of the Company's receipt
of a registration request hereunder that the Company has in good faith
determined that the filing of such a registration statement at that time would
interfere with a material financing or acquisition then contemplated by the
Company and specifies in writing the manner and extent
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to which such registration would so interfere, the Company shall have the right
to delay for a period of not more than ninety (90) days a registration of a
Transfer of Registrable Securities pursuant to the request of Prospective
Sellers under this Section 2.2. If for any reason (other than the requested
withdrawal of such registration statement by such Prospective Sellers or other
action or inaction of the Prospective Seller) any registration statement filed
with the Commission with respect to securities which the Company is required to
register under this Section 2.2 shall not be declared effective by the
Commission and remain effective for a period of at least 90 days, such
attempted registration shall not constitute a registration under this Section
2.2. The Company may register a Transfer on the least expensive form available.
The Company may permit certain third parties incidental rights subordinate to
the Prospective Sellers' rights in a registration under this Section 2.2,
provided that any shares to be included pursuant to such incidental rights may
be reduced or eliminated if in the good faith opinion of the Prospective
Sellers or their managing underwriter, if any, the inclusion of such shares
would raise a substantial doubt as to whether the proposed offering could be
consummated successfully. Any expenses required to be paid by the Prospective
Sellers with respect to any such registration shall be borne on a pro rata
basis by any third parties registering a transfer or transfers of stock
pursuant to the same registration.
2.3. Certain Limitations. The Brighams shall not have the
right to require a registration under Section 2.2 prior to the expiration of
one year from the date hereof. The GAP Parties, RIMCO and the Brighams shall
each have the right to initiate one registration pursuant to Section 2.2 (an
aggregate of three (3) registrations for all of the Demand Holders); provided
that, if after having effected three (3) registrations pursuant to Section 2.2,
any Registrable Securities requested to be included therein by a Demand Holder
shall not have been disposed of in accordance with such registration
statements, the Company shall be required to effect one, but no more than one,
additional registration at the request of any one or more Demand Holders
pursuant to Section 2.2 (an "ADDITIONAL REQUIRED REGISTRATION"). In addition,
the Company shall not be required to effect a registration pursuant to Section
2.2 unless the Registrable Securities to be included in such registration,
including those of all Prospective Sellers joining in such proposed sale, have
an estimated aggregate offering price to the public of at least $3,000,000. The
Prospective Sellers shall not have the right to participate in a registration
under Section 2.1 unless the Prospective Sellers provide to the Company a
written opinion of counsel, in substance and authorship acceptable to the
Company, that such Prospective Sellers may make such Transfer of all of their
Registrable Securities (if applicable) in a public sale which will be in
compliance with all applicable securities laws. All registration rights granted
in this Agreement shall expire ten (10) years after the completion of the first
public offering by the Company.
2.4. Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to effect the registration of any
Transfer of Registrable Securities under the Securities Act, the Company will,
as expeditiously as possible, and at its expense,
(a) prepare and file with the Commission a registration
statement with respect to such Transfer and use its best efforts to
cause such registration statement to become
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and remain effective for a period of at least one hundred eighty (180)
days or until the Prospective Sellers have completed the distribution
described in the registration statement relating thereto, whichever
occurs first;
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective, and to comply with the provisions of the
Securities Act with respect to the Transfer of all securities covered
by such registration statement, for a period of at least one hundred
eighty (180) days or until the Prospective Sellers have completed the
distribution described in the registration statement relating thereto,
whichever occurs first;
(c) furnish to each Prospective Seller who has requested
to use such registration statement such numbers of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such Prospective Seller may reasonably request in order
to facilitate its intended Transfer of the Registrable Securities
owned by such Prospective Seller and covered by such registration
statement;
(d) register or qualify the securities covered by such
registration statement under such other securities or blue sky laws of
such jurisdictions as each Prospective Seller shall reasonably
request, and do any and all other acts and things which may be
necessary or advisable to enable such Prospective Seller to consummate
the public sale or other disposition in such jurisdictions of the
Registrable Securities owned by such Prospective Seller and covered by
such registration statement;
(e) promptly upon becoming aware of such, notify each
Prospective Seller who has requested to use such registration
statement and each underwriter, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing
(f) furnish to the Prospective Sellers whose intended
Transfers are registered a signed copy of an opinion of counsel for
the Company, in substance and authorship acceptable to such
Prospective Sellers, to the effect that: (i) a registration statement
covering such Transfers of Registrable Securities has been filed with
the Commission under the Securities Act and has been made effective by
order of the Commission, (ii) such registration statement and the
prospectus contained therein and any amendments or supplements thereto
(other than the financial statements and other financial and
statistical data included therein, as to which an expert has rendered
an opinion) comply as to form in all material respects with the
requirements of the Securities Act, and nothing has come to such
counsel's attention which would cause him to believe that the
registration
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statement or such prospectus contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of
such prospectus, in the light of the circumstances under which they
were made) not misleading, (iii) such counsel knows of no legal or
governmental proceedings required to be described in such prospectus
which are not described as required, nor of any contract or documents
of a character required to be described in such registration statement
or such prospectus or to be filed as an exhibit to such registration
statement or to be incorporated by reference therein which is not
described and filed as required, (iv) a prospectus meeting the
requirements of the Securities Act is available for delivery, (v) to
the best of such counsel's knowledge, no stop order has been issued by
the Commission suspending the effectiveness of such registration
statement, and no proceedings for the issuance of such a stop order
are threatened or contemplated, and (vi) the applicable provisions of
the securities or blue sky laws of each state or jurisdiction in which
the Company shall be required, pursuant to clause (d) of this Section
2.4, to register or qualify such intended Transfers or the Registrable
Securities to be so transferred, have been complied with, assuming the
accuracy and completeness of the information furnished to such counsel
with respect to each filing relating to such laws; it being understood
that such counsel may rely, as to all factual matters and financial
data treated therein, on certificates of the Company (copies of which
shall be delivered to such Prospective Sellers), and as to all
questions of the laws of each jurisdiction in which the Company shall
be so required to register or qualify such intended Transfers or the
Registrable Securities to be so transferred, on an examination of the
securities laws of such jurisdiction and of the published rules and
regulations (if any) of the authorities administering such laws, as
reported in accepted unofficial publications and/or on an opinion of
counsel from such jurisdiction acceptable to such Prospective Sellers,
copies of which opinions shall be delivered to such Prospective
Sellers; provided, however, that the opinion of counsel for the
Company required by this Section 2.4(f) need not contain the opinion
required by this subsection (vi) in those situations in which the
underwriter's counsel provides such an opinion upon which the
Prospective Sellers are entitled to rely;
(g) otherwise comply with all applicable rules and
regulations of the Commission under the Securities Act, the Exchange
Act and otherwise, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period
of at least twelve months, but not more than eighteen months,
beginning with the first month after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(h) use its best efforts to list such securities on any
securities exchange on which any shares of Registrable Securities of
the Company are then listed.
2.5. Expenses; Limitations on Registration.
(a) All expenses incurred by the Company in complying with
Sections 2.1 and 2.2, including, without limitation, all registration and
filing fees, printing expenses, fees and
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disbursements of counsel for the Company, fees and disbursements of accountants
and auditors of the Company with respect to quarterly and annual financial
statements of the Company, and expenses of complying with the securities or
blue sky laws of any jurisdictions pursuant to Section 2.4, shall be paid by
the Company; provided that commissions, fees and expenses of the underwriter
allocable to the securities to be registered for the Prospective Sellers and
costs of separate counsel shall be borne pro rata by the Prospective Sellers.
(b) It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Agreement in respect of any
Transfer of Registrable Securities which is to be registered at the request of
any Prospective Seller that such Prospective Seller furnish to the Company such
written information regarding the securities held by such Prospective Seller
and the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action to be taken by
the Company.
2.6. Indemnification.
(a) In the event of any registration of any Transfer of
Registrable Securities under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless each Prospective Seller of such
securities, its directors, partners and officers, each underwriter and each
other person who participates in the offering of such securities and each other
person, if any, who controls such Prospective Seller or such participating
person within the meaning of the Securities Act, against any losses, claims,
damages, expenses or liabilities, joint or several, to which such Prospective
Seller or any such director, partner or officer or participating person or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any alleged untrue
statement of any material fact contained, on the effective date thereof, in any
registration statement under which such Transfer of Registrable Securities was
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse such Prospective Seller or such director, partner, officer,
underwriter or participating person or controlling person for any legal or any
other expenses incurred by such Prospective Seller or such director, partner,
officer, underwriter or participating person or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable
hereunder in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any alleged untrue statement or
alleged omission made in such registration statement, preliminary prospectus,
prospectus, or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company through an instrument duly
executed by such Prospective Seller specifically for use in connection
therewith. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Prospective Seller or such
director, partner, officer, underwriter or participating person or controlling
person, and shall survive any Transfer of such Registrable Securities by such
Prospective Seller.
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(b) Each Prospective Seller shall indemnify and hold harmless each
other Prospective Seller, the Company, its directors, partners and officers,
each underwriter and each other person who participates in the offering of
Registrable Securities, and each other person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims, damages,
expenses or liabilities, joint or several, to which the Company or any such
director, partner or officer or any such controlling person or Prospective
Seller may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration
statement under which a Transfer of Registrable Securities was
registered under the Securities Act at the request of such Prospective
Seller, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or
(ii) any alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such alleged untrue statement or alleged omission was
made in such registration statement, preliminary prospectus, final
prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an
instrument duly executed by such indemnifying Prospective Seller
specifically for use in connection therewith, and shall reimburse the
Company or such director, officer, controlling person or Prospective
Seller for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such loss, claim,
damage, liability or action.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect hereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the failure so to notify
the indemnifying party shall not relieve it from any liability which it may
have to any indemnified party hereunder. In any proceeding in which
indemnification is sought pursuant to Section 2.6(a) and (b) above, the
indemnifying party may (i) participate at its own expense in the defense or,
(ii) if it so elects, jointly with any other indemnifying party similarly
notified, assume the defense of any suit or administrative or other proceeding
brought to enforce or determine liability. After notice by an indemnifying
party of its election to assume the defense of a suit or administrative or
other proceeding, the indemnifying party shall not be liable for any legal or
other expenses subsequently incurred by the indemnified party in connection
with the defense, except to the extent that the indemnified party has
additional defenses not available to the indemnifying party, in which event the
costs and expenses of one attorney or law firm for the indemnified party will
be borne by the indemnifying party.
(d) The indemnifying party need not indemnify any person for any
payment made in settlement of any suit or claim unless the payment is consented
to by the indemnifying party, which consent shall not be unreasonably withheld.
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3. Definitions. As used herein, unless the context
otherwise requires, the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any
other Federal agency at the time administering the Securities
Act.
Company: As defined in the introductory paragraph of this
Agreement. For purposes of this Agreement, all references to
the Company shall be deemed to include any successor entity or
transferee.
Demand Holders: Any of the GAP Parties, RIMCO, or the
Brighams.
Exchange Act: The Securities Exchange Act of 1934, or any
similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at
the time. Reference to a particular section of the Securities
Exchange Act of 1934 shall include a reference to the
comparable section, if any, of any such similar Federal
statute.
Initial Registration Date: The first to occur of (i) March 31,
1998, and (ii) the 180th day after a registration statement
shall have been filed and declared effective under the
Securities Act with respect to the initial public offering of
the Company's securities.
Majority Holders: At any time, the holder or holders of more
than 50% (by number of shares) of all Registrable Securities
then outstanding.
Person: A corporation, an association, a partnership, a
business, an individual, a governmental or political
subdivision thereof or a governmental agency.
Registrable Securities: any Company Common Stock owned by an
Owner and any securities issued or issuable with respect to
any such Company Common Stock by way of distribution or in
connection with any reorganization, recapitalization, merger,
consolidation or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration
statement, (b) they shall have been distributed to the public
pursuant to Rule 144 or Rule 144A (or any successor provision)
under the Securities Act, (c) they shall have been otherwise
transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act
or any similar state law then in force, or (d) they shall have
ceased to be outstanding.
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Securities Act: The Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the
Commission thereunder, all as of the same shall be in effect
at the time. References to a particular section of the
Securities Act of 1933 shall include a reference to the
comparable section, if any, of any such similar Federal
Statute.
Transfer: Any disposition or offer to dispose of any
Registrable Securities, or any interest therein, which would
constitute a sale of or an offer to sell such Registrable
Securities or any such interest within the meaning of the
Securities Act.
4. Rule 144 and Rule 144A: If the Company shall have
filed a registration statement pursuant to the requirements of Section 12 of
the Exchange Act or a registration statement pursuant to the requirements of
the Securities Act, the Company will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder (or, if the Company is not required to
file such reports, will, upon the request of any holder of Registrable
Securities, make publicly available other information) and will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements. After any sale
of Registrable Securities pursuant to this Section 4, the Company will, to the
extent allowed by law, cause any restrictive legends to be removed and any
transfer restrictions to be rescinded with respect to such Registrable
Securities. In order to permit the holders of Registrable Securities to sell
the same, if they so desire, pursuant to Rule 144A promulgated by the
Commission (or any successor to such rule), the Company will comply with all
rules and regulations of the Commission applicable in connection with use of
Rule 144A (or any successor thereto). Prospective transferees of Registrable
Securities that are Qualified Institutional Buyers (as defined in Rule 144A)
which would be purchasing such Registrable Securities in reliance upon Rule
144A may request from the Company information regarding the business,
operations and assets of the Company. Within five business days of any such
request, the Company shall deliver to any such prospective transferee copies of
annual audited and quarterly unaudited financial statements of the Company and
such other information as may be required to be supplied by the Company for it
to comply with Rule 144A.
5. Amendments and Waivers. This Agreement may be amended
and the Company may take any action herein prohibited or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act, of
the Majority Holders; provided, however, that no amendment to this Agreement
that would adversely affect the rights of a party hereto may be
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made without the prior written consent of such party, with the exception that
temporary waivers and suspensions of the rights of all of the Owners pursuant
to customary terms at the request of the managing underwriter in connection
with any underwritten offering of the Company's securities, may be authorized
by consent of the Majority Holders. Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by any consent authorized
by this Section 5, whether or not such Registrable Securities shall have been
marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
7. Notices. All communications provided for hereunder
shall be sent by first-class mail addressed to such party at the address set
forth opposite such parties name on the execution page hereof or at such other
address as such party shall furnish to the other parties hereto from time to
time.
8. Assignment. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be
entitled to certain rights, or take certain actions, contained herein.
9. Termination. This Agreement shall terminate when no
Registrable Securities remain outstanding.
10. Termination of Registration Rights Under Partnership
Agreement. The parties hereto who are parties to the Partnership Agreement
agree that on the Effective Date the registration rights under Article X of the
Partnership Agreement are hereby terminated and of no further force or effect.
11. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
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12. Specific Performance. The parties hereto recognize
and agree that money damages may be insufficient to compensate the holders of
any Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
13. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Texas.
14. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
the same to be executed by their duly authorized corporate officers, all as of
the day and year first above written.
XXXXXXX EXPLORATION COMPANY, a
Delaware corporation
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
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Title: President
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GENERAL ATLANTIC PARTNERS III, L.P., a Delaware
limited partnership
By: GAP III Investors, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: President
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GAP-XXXXXXX PARTNERS, L.P., a Delaware
limited partnership
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------------------
Title: General Partner
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RIMCO PARTNERS, X.X. XX
RIMCO PARTNERS, L.P. III
RIMCO PARTNERS, X.X. XX
By: Resource Investors Management Company Limited
Partnership, the General Partner of each
By: RIMCO Associates, Inc., its General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx, Vice President
/s/ Xxx X. Xxxxxxx
--------------------------------------------
XXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
XXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxx
--------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
---------------------------------------------
XXXXX X. XXXXXXX
/s/ Xxx X. Xxxxx
---------------------------------------------
XXX X. XXXXX
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