EXHIBIT 10.11
XPLOR ENERGY, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is being executed and delivered on this
24th day of September, 1997, to be effective as of such date (this "Agreement"),
by and between XPLOR Energy, Inc., a Delaware corporation (the "Company"), and
Credit Lyonnais New York Branch, a duly licensed branch under the New York
Banking Law of a foreign bank corporation organized under the laws of the
Republic of France ("Stockholder").
W I T N E S S E T H:
WHEREAS, the Company and Stockholder entered into that certain Stock
Purchase Warrant of even date herewith (the "Warrant").
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
REGISTRATION RIGHTS
The Company and Stockholder covenant and agree as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The terms "register," "registered" and "registration" refer to a
registration of securities effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act (as
defined below), and the declaration or ordering of effectiveness of such
registration statement or document.
(b) The term "Registrable Securities" means (i) the Common Stock owned
by Stockholder as a result of exercising all or a portion of its rights
under the Warrant, and (ii) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such Common Stock.
(c) The term "Restricted Securities" means the Registrable Securities
upon original issuance thereof, subject to the provisions of Section 1.2
hereof.
(d) The term "Person" means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or
government or agency or political subdivision thereof.
(e) The term "Board" means the Board of Directors of the Company.
(f) The term "Commission" means the Securities and Exchange
Commission.
(g) The term "Securities Act" means the Securities Act of 1933, as
amended, and the term "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(h) The term "Best Efforts" means a Person's good faith best efforts
in accordance with reasonable commercial practice.
1.2 Securities Subject to this Agreement. The securities entitled to the
benefits of this Agreement are the Registrable Securities but with respect to
any particular Registrable Security, only so long as such security continues to
be a Restricted Security. A Registrable Security ceases to be a Restricted
Security when (a) it has been effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering it, (b)
it is sold pursuant to Rule 144 or Rule 145 (or any similar provision then in
force) under the Securities Act or (c) it is eligible for sale pursuant to Rule
144 or Rule 145 (or any similar provision then in force) under the Securities
Act without any volume limitations.
1.3 Registration on Request.
(a) If, at any time after the consummation of an initial public
offering ("IPO") of Common Stock (the "IPO Date"), the Company shall
receive a written request from Stockholder that the Company file a
registration statement under the Securities Act covering the registration
of all or part (but not less than seventy-five percent (75%) of the total
number of shares of Common Stock that may be acquired as a result of the
exercise of the entire Warrant) of the Registrable Securities, then the
Company shall, subject to the limitations of Sections 1.5 and 1.7 hereof,
effect the registration of all Registrable Securities that Stockholder
requests to be registered as soon as practicable after the receipt by the
Company of such written request by means of a shelf registration statement
on any appropriate form under the Securities Act for an offering to be made
on a continuous basis pursuant to Rule 415 under the Securities Act. The
Company agrees to use its Best Efforts to keep such shelf registration
statement continuously effective, in the case of a registration statement
on Form S-3, for a period of 120 days, and for a period of 60 days in the
case of any other shelf registration statement, following the date on which
such shelf registration statement is declared effective (plus the number of
days of any discontinuance described below).
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(b) If the requesting Stockholder intends to distribute the
Registrable Securities covered by the request by means of an underwriting,
it shall so advise the Company as a part of its request made pursuant to
this Section 1.3.
(c) The Company is obligated to effect one registration pursuant to
this Section 1.3, in addition to any registrations in which the Stockholder
may participate pursuant to the other provisions of this Agreement. A
registration shall not be deemed to have been effected (i) unless it has
become effective and remained effective for the period specified in Section
1.3(a) or, if earlier, until the Registrable Securities registered under
such registration statement have been sold, or (ii) if, after it has become
effective, such registration is terminated by a stop order, injunction or
other order of the Commission or other governmental agency or court.
(d) If none of the Registrable Securities registered pursuant to any
shelf registration pursuant to this Section 1.3 are to be sold in an
underwritten offering, shares of Common Stock other than the Registrable
Securities may be included among the securities covered by the registration
statement effected pursuant to this Section 1.3. If any of the Registrable
Securities registered pursuant to this Section 1.3 are to be sold in an
underwritten offering, shares of Common Stock other than the Registrable
Securities may be included among the securities covered by the registration
statement subject to the right to exclude such other securities under
Section 1.3(e).
(e) If any of the Registrable Securities registered pursuant to any
shelf registration pursuant to this Section 1.3 are to be sold in an
underwritten offering, and the managing underwriter or underwriters deliver
an opinion to the Company and the requesting Stockholder that the total
number of shares of Common Stock which Stockholder and any other Persons
intend to include in such offering exceeds the number of shares that can be
sold in such offering, then there shall be included in such underwritten
offering the number of shares of Common Stock which in the opinion of such
underwriters can be sold, and such shares shall be allocated pro rata among
the holders of shares of Common Stock to be sold on the basis of the number
of shares of Common Stock to be registered; provided, that if shares of
Common Stock are being offered for the account of other Persons pursuant to
Section 1.3 (including the Company) as well as Stockholder, a reduction in
number of shares shall first be made from the shares intended to be offered
by such Persons other than the Stockholder. Anything in this Agreement to
the contrary notwithstanding, in the event that the Stockholder requests
registration of their Registrable Securities pursuant to this Section 1.3
and shares representing 50% or more of the Registrable Securities requested
to be included by Stockholder are excluded from the offering by the
managing underwriter or underwriters thereof, then such registration shall
not constitute, or be counted as, the registration requested by the
Stockholder pursuant to Section 1.3 hereof.
(f) Notwithstanding the foregoing, the Company shall not be required
to register any Registrable Securities pursuant to this Section 1.3: (i)
during a reasonable period of
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time, not to exceed six months, following the IPO Date, if the Company has
been advised by the managing underwriters for the IPO that a registration
of Registrable Securities pursuant to this Section 1.3 would adversely
affect the market for the Common Stock, (ii) during a reasonable period of
time (not to exceed 120 days) with respect to which the Board of Directors
of the Company has determined that a registration of Registrable Securities
pursuant to this Section 1.3 would adversely affect the Company because of
a material nonpublic acquisition or similar material transaction that is
pending or imminent, or (iii) if, within the six-month period preceding the
date Company receives the written request of Stockholder requesting
registration pursuant to Section 1.3, Common Stock of Company was
registered under the Securities Act for sale for the account of any Person
pursuant to an effective registration statement, and the Stockholder was
offered any opportunity to have the Registrable Securities included therein
and declined to request that a majority of such shares be included.
1.4 Company Registration. At any time the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than the Stockholder) any shares of its Common Stock under
the Securities Act for sale (other than registration of the Common Stock for
issuance or sale (a) pursuant to Section 1.3 hereof or (b) in connection with
(i) employee or non-employee director compensation or benefit programs, (ii) an
exchange offer or an offering of securities solely to the existing stockholders
or employees of the Company or (iii) an acquisition, merger or other business
combination using a registration statement on Form S-4 or any successor or other
appropriate form), the Company will give prompt written notice (which, in any
event, shall be given no less than 15 days prior to the filing of a registration
statement with respect to such offering) to the Stockholder of its intention so
to do and, upon the written request of Stockholder sent within 15 days after the
effective date of any such notice, the Company will, subject to the provisions
of Sections 1.5 and 1.7 hereof, use its Best Efforts to cause all Registrable
Securities as to which Stockholder shall have so requested registration, to be
registered under the Securities Act, all to the extent necessary to permit the
sale in such offering of the Registrable Securities so registered on behalf of
Stockholder in the same manner as the Company (or stockholder other than
Stockholder, as the case may be) proposes to offer its shares of Common Stock.
The Company shall use its Best Efforts to cause the managing underwriter or
underwriters of a proposed underwritten offering to permit the Registrable
Securities requested by the Stockholder to be included in the registration for
such offering on the same terms and conditions as the shares of Common Stock of
the Company included therein. Notwithstanding the forgoing, if the managing
underwriter or underwriters of such offering deliver an opinion to the Company
and the requesting Stockholder that the total number of shares of Common Stock
which the requesting Stockholder or the Company, and any other Person, intend to
include in such offering will in the good faith opinion of such managing
underwriter or underwriters materially and adversely affect the success of such
offering, then the number of shares of Common Stock to be offered for the
account of the Stockholder shall be reduced pro rata based upon the number of
shares of Common Stock proposed to be sold by the Stockholder and other Persons
(excluding Company) to the extent necessary to reduce the total number of shares
of Common Stock to be included in such offering to the number of shares
recommended by such managing underwriter.
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1.5 Obligations of the Company. If and whenever the Company is required
by the provisions of this Agreement to use its Best Efforts to effect the
registration of any Registrable Securities, the Company shall as expeditiously
as reasonably practicable:
(a) Prepare and file with the Commission a registration statement on
an appropriate form under the Securities Act and use its Best Efforts to
cause such registration statement to become effective; provided, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by reference after
the initial filing of any registration statement, as soon as practicable,
the Company will finish to the requesting Stockholder and the underwriters,
if any, copies of all such documents proposed to be filed, which documents
will be subject to the review of the requesting Stockholder and the
underwriters, and the Company will not file any registration statement or
amendment thereto, or any prospectus or any supplement thereto (including
such documents incorporated by reference) to which the requesting
Stockholder or the underwriters, if any, shall reasonably object in the
light of the requirements of the Securities Act and any other applicable
laws and regulations.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to a registration statement as may be necessary to
keep such registration statement effective for the applicable period; cause
the related prospectus to be filed pursuant to Rule 424(b) under the
Securities Act; cause such prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule
424(b) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement during the applicable period in accordance with
the intended methods of disposition set forth in such registration
statement or supplement to such prospectus.
(c) Notify the requesting Stockholder and the managing underwriters,
if any, promptly, and (if requested by any such Person) confirm such
advice in writing, (i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to a
registration statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
supplements to a registration statement or related prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of a registration statement or the
initiation of any proceeding for that purpose, (iv) if at any time the
representations and warranties of the Company contemplated by Section
1.5(l) cease to be true and correct, (v) of the receipt by the Company of
any notification with respect to the suspension or qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose, (vi) of the happening of any event
which requires the making of any changes in a registration statement or
related prospectus so that such documents will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
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misleading and (vii) of the Company's reasonable determination that a post-
effective amendment to a registration statement would be appropriate or
that there exist circumstances not yet disclosed to the public which make
further sales under such registration statement inadvisable pending such
disclosures and post-effective amendment.
(d) Make reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of
any suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters or Stockholder in
connection with an underwritten offering, immediately incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters and Stockholder agree should be included therein
relating to such sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of
shares of Registrable Securities being sold to such underwriters and the
purchase price being paid therefor by such underwriters and with respect to
any other terms of the underwritten (or best efforts underwritten) offering
of the Registrable Securities to be sold in such offering; make all
required filings of such prospectus supplement or post-effective amendment
as soon as notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment; and supplement or make amendments
to any registration statement if requested by Stockholder or any
underwriter of such Registrable Securities.
(f) Furnish to Stockholder requesting registration and each managing
underwriter, if any, without charge, at least one signed copy of the
registration statement, any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference).
(g) Deliver without charge to Stockholder requesting registration and
the underwriters, if any, as many copies of the prospectus or prospectuses
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons may reasonably request; and the Company consents to
the use of such prospectus or any amendment or supplement thereto by
Stockholder and the underwriters, if any, in connection with the offer and
sale of the Registrable Securities covered by such prospectus or any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, register
or qualify or cooperate with the Stockholder requesting registration, the
underwriters, if any, and respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
Stockholder or an underwriter reasonably requests in writing; keep each
such registration or qualification effective during the period such
registration statement is required to be kept
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effective and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable registration statement; provided, however, that
the Company will not be required in connection therewith or as a condition
thereto to qualify generally to do business or subject itself to general
service of process in any such jurisdiction where it is not then so
subject.
(i) Cooperate with Stockholder and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable
Securities to the underwriters.
(j) Use its Best Efforts to cause the Registrable Securities covered
by the applicable registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary, if
any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 1.5(c)
(ii) - (vii) above, prepare a supplement or post-effective amendment to the
applicable registration statement or related prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchaser of the Registrable
Securities being sold thereunder, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading.
(l) Enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities and
in such connection, whether or not an underwriting agreement is entered
into and whether or not the Registrable Securities to be covered by such
registration are to be offered in an underwritten offering: (i) make such
representations and warranties to the Stockholder with respect to the
registration statement, prospectus and documents incorporated by reference,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates
thereof with respect to the registration statement and the prospectus in
the form, scope and substance which are customarily delivered in
underwritten offerings; (iii) in the case of an underwritten offering,
enter into an underwriting agreement in form, scope and substance as is
customary in underwritten offerings and obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters
and the Stockholder) addressed to Stockholder and the underwriters, if any,
covering the matters customarily covered in opinions delivered in
underwritten offerings and such other matters as may be reasonably
requested by
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Stockholder and such underwriters; (iv) obtain "cold comfort" letters and
updates thereof from the Company's independent certified public accountants
addressed to Stockholder and the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in
"cold comfort" letters by accountants in connection with underwritten
offerings; (v) if any underwriting agreement is entered into, the same
shall set forth in full the indemnification provisions and procedures
customarily included in underwriting agreements in underwritten offerings;
and (vi) the Company shall deliver such documents and certificates as may
be requested by Stockholder and the managing underwriters, if any, to
evidence compliance with clause (i) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company. The above shall be done at each closing under such
underwriting or similar agreement or as and to the extent required
thereunder.
(m) Make available for inspection by a representative of Stockholder
requesting registration, any underwriter participating in any disposition
pursuant to such registration, and any attorney or accountant retained by
Stockholder or such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant
in connection with such registration; provided, that any records,
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such Persons unless disclosure
of such records, information or document sis required by court or
administrative order.
(n) Otherwise use its Best Efforts to comply with all applicable rules
and regulations of the Commission and make generally available to its
security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act, no later than 90 days after the end of any 12-
month period (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold by underwriters in a firm or best efforts
underwritten offering and (ii) beginning with the first day of the
Company's first fiscal quarter next succeeding each sale of Registrable
Securities after the effective date of a registration statement, which
statements shall cover said 12-month periods.
(o) In connection with any registration of Registrable Securities, the
Company may require Stockholder to furnish to the Company such information
regarding itself and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Stockholder agrees by acquisition of Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 1.5(c) (ii)-(vii) hereof, Stockholder will
forthwith discontinue disposition of Registrable Securities covered by such
registration statement or prospectus until Stockholder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
1.5(c)(i)
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hereof, or until it is advised in writing by the Company that the use of
the applicable prospectus may be resumed, and has received copies of any
additional or supplemental filing which are incorporated by reference in
such prospectus, and, if so directed by the Company, the Stockholder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Stockholder's possession, of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such
notice, the time period mentioned in Section 1.3(a) shall be extended by
the number of days during the time period from and including the date of
the giving of such notice pursuant to Section 1.5(c) hereof to and
including the date when Stockholder shall have received the copies of the
supplemented or amended prospectus contemplated by Section 1.5(c) hereof.
1.6 Expenses of Registration. All expenses incurred in connection with a
registration, filing or qualification pursuant to Section 1.3 or 1.4 hereof
(other than fees and expenses of the Company's counsel), including, without
limitation, registration, filing and qualification fees, printers' and
accounting fees (other than the fees and disbursements of counsel for
Stockholder, which shall be paid by such Stockholder) and any underwriting
discounts and commissions, shall be borne and paid by Stockholder as the number
of Registrable Securities registered pursuant to such registration bears to the
total amount of securities registered pursuant thereto.
1.7 Underwritten Registrations.
(a) If any of the Registrable Securities covered by any registration
under Section 1.3 are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the requesting Stockholder,
subject to the consent of Company, which consent will not be unreasonably
withheld.
(b) The Stockholder may not participate in any underwritten
registration under Section 1.4 hereunder unless it (i) agrees to sell its
securities on the basis provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements. In connection with any
underwritten offering that includes securities being issued or sold by the
Company, the Company shall be the Person entitled hereunder to approve the
terms of the underwriting arrangements.
1.8 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Stockholder, the officers and directors of Stockholder,
each underwriter of Registrable Securities and each other Person, if any,
who controls Stockholder or such
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underwriter within the meaning of Section 1.5 of the Securities Act,
against any losses, claims, damages, liabilities or expenses, joint or
several, to which any such Person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto, or any
post-effective amendment thereof, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus, if used prior to the effective date of the registration
statement and not corrected in the final prospectus, or contained in the
final prospectus (as amended or supplemented, if the Company shall have
filed with the Commission any amendment thereof or supplement thereto), or
the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and will reimburse any such Person for any legal or other
expenses reasonably incurred by such Person in connection with
investigating or defending any such loss, claim, damage, liability or
expense; provided, however, that the indemnify agreement contained in this
Section 1.8(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld); and provided further that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or
expenses arises out of or is based upon any such untrue statement or
omission or alleged untrue statement or omission which has been made in
said registration statement, preliminary prospectus, prospectus or
amendment or supplement or omitted therefrom in reliance upon and in
conformity with information furnished in writing to the Company by
Stockholder or such underwriter specifically for use in the preparation
thereof.
(b) To the extent permitted by law, Stockholder whose Registrable
Securities shall have been registered pursuant to this Agreement will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act, each underwriter and each Person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against any losses,
claims, damages, liabilities or expenses, joint or several, to which the
Company or any such Person, may become subject under the Securities Act or
otherwise, and will reimburse the Company or any such Person for any legal
or other expenses reasonably incurred by the Company or such Person in
connection with investigating or defending any such loss, claim, damage,
liability or expense, but only insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission of a material fact referred to in clause (i) or (ii) of Section
1.8(a) hereof, in each case to the extent (and only to the extent) that
such untrue statement or omission or alleged untrue statement or omission
was made in reliance upon and in
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conformity with information furnished in writing by or on behalf of
Stockholder specifically for use in connection with such registration;
provided, however, that the indemnity agreement contained in this Section
1.8(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if such settlement is effected without
the consent of Stockholder, which consent shall not be unreasonably
withheld; and, provided further, that the obligations Stockholder under
this Section 1.8(b) shall be limited to an amount equal to the amount of
proceeds from the sale by Stockholder of Registrable Securities included in
a registration statement under this Agreement to which such obligations
relate.
(c) Promptly after receipt by an indemnified party under this Section
1.8 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party under this Section 1.8, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however, that
an indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure so to notify
an indemnifying party within a reasonable time of the commencement of any
such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party
under this Section 1.8, but the omission so to notify the indemnifying
party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.8.
(d) If the indemnification provided for in this Section 1.8 from the
indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, 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, liabilities
or expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in connection with
the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations; provided
that the obligations of Stockholder under this Section 1.8(d) shall be
limited to an amount equal to the amount of proceeds from the sale by
Stockholder of Registrable Securities included in a registration statement
under this Agreement to which such obligations relate. The relative fault
of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified parties,
and the parties' relative intent, knowledge,
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access to information and opportunity to correct or prevent such action.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 1.8(c) hereof, any
legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 1.8(d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
1.9 Reports Under Exchange Act. With a view to making available to
Stockholder the benefits of Rule 144 under the Securities Act and any other rule
or regulation of the Commission that may at any time permit the Stockholder to
sell securities of the Company to the public without registration, the Company
agrees to:
(a) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder;
and
(b) furnish to Stockholder forthwith upon request (i) a written
statement by the Company as to whether it has complied with the reporting
requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents filed by the Company
pursuant to the Exchange Act and (iii) such other information as may be
reasonably requested in availing Stockholder of any rule or regulation of the
Commission which permits the sale of any securities without registration.
1.10 Assignment of Registration Rights. The right to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned, in
whole or in part, to any assignee of the Registrable Securities (to the extent
of the shares of Common Stock assigned by Stockholder without the prior written
consent of the Company.
1.11 Hold-Back Agreements.
(a) The Company agrees (i) not to effect any public sale or
distribution of any securities similar to those being registered during the
14-day period prior to, and during the 60-day period beginning on, the date
the distribution under a registration statement filed pursuant to Section
1.3 or 1.4 hereof is completed (except as part of such registration or in
connection with (A) employee or non-employee director compensation or
benefit programs, (B) an exchange offer or an offering of securities solely
to the existing stockholders or
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employees of the Company, or (C) an acquisition, merger or other business
combination using a registration statement on Form S-4 or any successor or
other appropriate form.
(b) Each holder of Registrable Securities agrees not to effect any
public sale or distribution of Registrable Securities which are similar in
nature as the securities of the Company being registered, during the
fourteen days prior to and during the 60-day period beginning on, the
effective date of a registration statement filed by the Company (except as
part of such registration), but only if and to the extent requested in
writing (with reasonable prior notice) by the managing underwriter or
underwriters in the case of an underwritten public offering or, if such
offering is not underwritten, by the Company of securities similar to the
Registrable Securities.
ARTICLE II
MISCELLANEOUS
2.1 Successors and Assigns; No Third Party Benefit. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
permitted successors and assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto and their
respective permitted successors and assigns any rights or remedies under or by
reason of this Agreement, except as expressly provided in this Agreement.
2.2 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Texas, without
giving effect to the principles or conflicts of law thereof.
2.3 Counterparts. This Agreement may be executed by the parties hereto in
separate counterpart, each of which when so executed and delivered shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies hereof
each signed by less than all, but together signed by all, the parties hereto.
2.4 Titles and Subtitles. The titles and subtitles used in this Agreement
are inserted for convenience only and are not to be considered in construing or
interpreting this Agreement.
2.5 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be delivered by (a)
personal delivery, (b) expedited delivery service, (c) telefax with confirmed
delivery, or (d) certified or registered mail, postage prepaid. Any such notice
shall be deemed given upon its receipt at the following address or telefax
number, as applicable:
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(i) If to Credit Lyonnais:
Credit Lyonnais New York Branch
Telefax:
-------------------------
Attention:
------------------------
With a copy to:
Telefax:
-------------------------
and thereafter at such other address, notice of which is given to the Company
in accordance with this Section 2.5; and
(ii) If to Company:
00000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Telefax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
With a copy to:
Xxxxxx X. Xxxxxxx
Xxxxx & Xxxxxxx
1800 Mid-America Tower
00 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telefax: (000) 000-0000
and thereafter at such other address, notice of which is given in accordance
with this Section 2.5.
2.6 Amendment and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof (which may be
generally or in a particular instance and either retroactively or prospectively)
may not be given, unless the Company has obtained the written consent of
Stockholder.
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2.7 Severability. If any provision or any portion of any provision of
this Agreement or the application of such provision or any portion there of to
any Person or circumstance shall be held invalid or unenforceable, the remaining
portion of such provision, as it applies to other Persons or circumstances and
the remaining provisions, shall not be affected or impaired thereby.
2.8 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter herein contained. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company to the
Stockholder. This Agreement supersedes all prior agreements and understanding
between the parties with respect to such subject matter.
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In Witness Whereof, the parties have caused this Agreement to be duly
executed as of the date first above written.
COMPANY:
XPLOR ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, President and
Chief Executive Officer
STOCKHOLDER:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Pascal Poupelle
---------------------------------------
Name: Pascal Poupelle
Title: Executive Vice President
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