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EXHIBIT 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into
as of November 1, 2000, by and among Xxxxxxx Exploration Company, a Delaware
corporation (the "COMPANY"), and the parties listed on SCHEDULE A hereto (the
"INVESTORS").
RECITALS
WHEREAS, each Investor is a party to a certain Warrant
Certificate (the "WARRANT CERTIFICATE") dated as of November 1, 2000, by and
between the Company and such Investor;
WHEREAS, the Warrant Certificates were executed and delivered
in connection with the consummation of transactions contemplated by that certain
Securities Purchase Agreement dated as of November 1, 2000 by and among the
Company and the Investors;
WHEREAS, pursuant to the Warrant Certificates, the Holder (as
defined below) has been issued a warrant (the "WARRANT") to purchase shares of
the Company's common stock, par value $.01 per share (the "COMPANY'S COMMON
STOCK");
WHEREAS, to induce the Investors to enter into the Warrant
Certificates and the Securities Purchase Agreement, the Company has agreed to
grant the registration and other rights contained in this Agreement;
AGREEMENT
1. DEFINITIONS
For purposes of this Agreement, the following terms
have the following meanings:
(a) "FORM S-3" means such form under the Act
as in effect on the date hereof or any registration form under the Act
subsequently adopted by the Securities and Exchange Commission (the"SEC") that
similarly permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC;
(b) "HOLDER" means any person owning or
having the right to acquire Registrable Securities who is a party to this
Agreement as of the date hereof or who may be added as a party pursuant to the
terms of this Agreement, and any assignee thereof;
(c) "REGISTER," "REGISTERED" and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "ACT"), and the declaration or order of effectiveness
of such registration statement or document;
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(d) "REGISTRABLE SECURITIES" means (i) the
Common Stock of the Company issuable or issued upon exercise of the Warrants and
(ii) any Common Stock of the Company issued as (or issuable upon the conversion
or exercise of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such Warrants or Common Stock, excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which its rights
under this Agreement are not assigned ; and
(e) "REGISTRABLE SECURITIES THEN
OUTSTANDING" means the number of shares of Common Stock outstanding which are,
and the number of shares of Common Stock issuable pursuant to then exercisable
or convertible securities which are, Registrable Securities.
(f) "SEC" means the Securities and Exchange
Commission.
2. REQUEST FOR REGISTRATION
(a) If the Company shall receive a written
request from the Holders of at least 25% of the Registrable Securities then
outstanding (the "INITIATING HOLDERS") that the Company file a registration
statement under the Act covering the registration of at least 25% of the
Registrable Securities, then the Company shall, within 10 days after the receipt
of such request, give written notice of such request to all Holders and shall,
subject to the limitations set forth below, use its reasonable best efforts to
effect as soon as practicable the registration under the Act of all Registrable
Securities that the Holders request to be registered in a written request to be
given within 30 days of receipt of such notice by the Company.
(b) The Company is obligated to effect only
two registrations pursuant to this Section 2.
(c) Notwithstanding the foregoing, if the
Company shall furnish to the Initiating Holders requesting a registration
pursuant to this Section 2 within 30 days of receiving such request 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 and its stockholders for such in registration
statement to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for up to 2 periods of not more than 45 days each after receipt of the request
of the Initiating Holders; provided, however, that the Company may not use this
right more than once (for a total of up to 90 days) in any 12-month period;
provided, however, that the Company shall promptly notify the Initiating Holders
requesting a registration pursuant to this Section 2 of any decision by the
Company to abandon or indefinitely delay such public offering.
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3. COMPANY REGISTRATION
If the Company proposes to register (including for this
purpose a registration effected by the Company for stockholders ("Requesting
Holders") other than the Holders) any of its stock or other securities under the
Act in connection with the public offering of such securities solely for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan, or a registration on any form that does
not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities), the Company shall, at each such time, promptly give each Holder
written notice of such registration. Upon the written request of each such
Holder given within 20 days after receipt of such notice by the Company, the
Company shall, subject to the provisions of Section 8, use its reasonable best
efforts to cause to be registered under the Act all of the Registrable
Securities that each such Holder has requested to be registered. In the event
that the Company decides for any reason not to complete the registration of
shares of Common Stock other than Registrable Securities, the Company shall have
no obligation under this Section 3 to continue with the registration of
Registrable Securities. Any request pursuant to this Section 3 to register
Registrable Securities as part of an underwritten public offering of Common
Stock shall specify that such Registrable Securities are to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration.
4. FORM S-3 REGISTRATION
(a) If the Company shall receive a written
request from the Holders of 25% of the Registrable Securities then outstanding
that the Company effect a registration on Form S-3, the reasonably anticipated
aggregate offering price to the public of which would equal or exceed
$2,000,000,then the Company shall, within 10 days after the receipt of such
request, give written notice of such request to all Holders and shall, subject
to the limitations set forth below, use its reasonable best efforts to effect as
soon as practicable the registration under the Act of all Registrable Securities
that the Holders request to be registered in a written request to be given
within 30 days of receipt of such notice by the Company.
(b) Notwithstanding the foregoing, the
Company shall not be obligated to effect any such registration pursuant to this
Section 4 if (i) Form S-3 is not available for such offering by the Holders;
(ii) the Company shall furnish to the Holders 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
and its stockholders for such Form S-3 registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 90 days after receipt
of the request of the Holders under this Section 4; provided, however, that the
Company shall not use this right more than once in any 12-month period; or (iii)
if the Company has, within the 12-month period preceding the date of such
request, already effected one such registrations on Form S-3 for the Holders
pursuant to this Section 4.
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5. OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use its
commercially reasonable efforts to cause such registration statement to become
effective, and, upon the request of the Holders of 25% of the Registrable
Securities registered thereunder, keep such registration statement effective for
up to one year.
(b) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act and such other documents as they may reasonably request
to facilitate the disposition of all securities covered by such registration
statement
(d) Use commercially reasonable efforts to
register and qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company shall not be
required to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such registration shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable
Securities covered by such registration statement, during the time when a
prospectus is required to be delivered under the Act, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an 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 not misleading in the light of the circumstances
then existing.
(g) At the request of any Holder selling
Registrable Securities in such registration, furnish on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with such registration (i) an opinion, dated such date, of legal counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given by Company counsel to underwriters in an
underwritten public offering, addressed to the underwriters and (ii) a letter,
dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by
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independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters.
(h) List the Registrable Securities being
registered on any national securities exchange on which a class of the Company's
equity securities is listed or qualify the Registrable Securities being
registered for inclusion on Nasdaq if the Company does not have a class of
equity securities listed on a national securities exchange.
6. FURNISH INFORMATION
It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Agreement that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be reasonably required to effect the registration of
their Registrable Securities and shall execute such documents in connection with
such registration as the Company may reasonably request.
7. EXPENSES OF REGISTRATION
In connection with any registration pursuant to this
Agreement, the Company shall be responsible for the payment of all reasonable
expenses of the registration, with the exception of (i) underwriting discounts
and commissions, which shall be paid by the Company, the Holders and any other
selling holders of the Company's securities in proportion to the aggregate value
of the securities offered for sale by each of them, and (ii) the fees and
expenses of more than one law firm acting as counsel to the selling Holders
selected by a majority in interest of the selling Holders, which additional
counsel, if any, shall be paid by the Holder or Holders that engage such
counsel. The expenses to be paid by the Company shall include, without
limitation, all registration, filing and qualification fees, printing and
accounting fees, the fees and disbursements of counsel for the Company and the
fees and disbursements of one counsel for the selling Holders; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2 or 4 if the registration
request is subsequently withdrawn (other than a withdrawal due to a material
adverse change in the Company's business or financial condition), unless, in the
event of a registration initiated pursuant to the provisions of Section 2, the
Holders of 25% of the Registrable Securities agree to forfeit the right to one
demand registration.
8. UNDERWRITING REQUIREMENTS
(a) The Holders requesting registration
under Section 2 must distribute the Registrable Securities covered by their
request by means of a public offering underwritten by a reputable national or
regional underwriter. The right of any Holder to include its Registrable
Securities in such registration under Section 2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall (together with the Company as
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provided in Section 5(e)) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders. Notwithstanding any other
provision of Section 2, if the underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise have been underwritten pursuant to
Section 2, and the number of shares of Registrable Securities that may be
included in the registration shall be apportioned first pro rata among the
selling Holders, including the Initiating Holders, according to the total amount
of Registrable Securities requested to be sold in such registration by such
Holders, then to the Company and then pro rata among any other selling
stockholders according to the total amount of securities otherwise entitled to
be included therein owned by each such selling stockholder, or in such other
proportions as shall mutually be agreed to by such selling stockholders.
(b) The Company shall not be required under
Section 3 to include any of the Holders' securities in an underwritten offering
of the Company's securities unless such Holders accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it. If the underwriters advise the Company that marketing factors require a
limitation on the number of shares, including Registrable Securities, to be
included in such offering, then the Company shall so advise all Holders of
Registrable Securities that would otherwise have been underwritten pursuant to
Section 3, and the number of shares, including Registrable Securities, that may
be included in the registration shall be apportioned first to the Company or
Requesting Holders, as the case may be, then pro rata among the selling Holders
according to the total amount of Registrable Securities requested to be sold in
such registration by such Holders, then pro rata among any other selling
stockholders according to the total amount of securities otherwise entitled to
be included therein owned by each such other selling stockholder, or in such
other proportions as shall mutually be agreed to by such selling stockholders;
provided that in no event shall the amount of securities of the selling Holders
included in the registration be reduced below 20% of the total amount of
securities included in such registration.
9. DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any registration of the Company as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
10. 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 each Holder, any underwriter (as
defined in the Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of
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the Act or the Securities Exchange Act of 1934, as amended (the "1934 ACT"),
against any actual expenses (including legal fees and costs), losses, claims,
damages (including settlement amounts) or liabilities joint or several)
(collectively, "LOSSES") to which they may become subject under the Act, the
1934 Act or other federal or state law, insofar as such Losses arise out of or
are based upon any of the following statements, omissions or violations
(collectively, a "VIOLATION"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein, or any
amendments or supplements thereto, untrue in light of the circumstances under
which they were made, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (iii) any violation or alleged violation by the Company of the
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law. The Company
will reimburse (as incurred) each such Holder, underwriter or controlling person
for any Losses reasonably incurred by them in connection with investigating or
defending any Violations; provided, however, that the indemnity agreement
contained in this Section 10(a) shall not apply to amounts paid in settlement of
any claims for Violations if such settlement is made without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any Losses that arise out of or are based upon a
Violation that occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by,
or on behalf of, any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each
selling Holder will indemnify and hold harmless the Company and its officers,
directors, agents and employees, each underwriter and each other Holder selling
securities in such in registration statement, and any person who controls any of
the foregoing within the meaning of the Act or the 1934 Act, against any Losses
to which the Company or such officer, director, agent, employee, or underwriter
or other selling Holder or controlling person may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such Losses arise out of
or are based upon any Violation that occurs in reliance upon and in conformity
with written information furnished by, or on behalf of, such Holder expressly
for use in connection with such registration; and each such Holder will
reimburse any Losses reasonably incurred by the Company or its officers,
directors, agents, employees, or underwriters or other selling Holders or
controlling persons in connection with investigating or defending any
Violations; provided, however, that (i) the indemnity agreement contained in
this Section 10(b) shall not apply to amounts paid in settlement of any claims
for Violations if such settlement is made without the consent of the Holder,
which consent shall not be unreasonably withheld and (ii) the obligations of
such Holders shall be limited to an amount equal to the gross proceeds before
expenses and commissions to each such Holder of Registrable Securities sold as
contemplated herein.
(c) Promptly after receipt of notice of the
commencement of any action (including any governmental action), an indemnified
party will, if a claim is to be
Registration Rights Agreement 7
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made against any indemnifying party under this Section 10, deliver to the
indemnifying party a written notice of the commencement, and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly notified 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, in the opinion of counsel for the indemnifying
party, 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 the proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable period of time after notice of the
commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Section 10 to the extent such
failure is prejudicial to its ability to defend such action, but the omission to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 10.
(d) If the indemnification provided for in
this Section 10 is held by a court of competent jurisdiction to be unavailable
to an indemnified party with respect to any Losses, 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 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 Violations that resulted in such Losses as well as any other relevant
equitable considerations; provided, that, in no event shall any contribution by
a Holder under this Section 10(d) exceed the gross proceeds before expenses and
commissions to each such Holder, except in the case of willful fraud by such
Holder. The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the
Violation resulting in such Losses relates to information supplied by the
indemnifying party or by the indemnifying party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such Violation.
(e) Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and
Holders under this Section 10 shall survive the completion of any offering of
Registrable Securities and the termination of Registration Rights pursuant to
Section 15.
11. REPORTS UNDER THE ACT
With a view to making available to the Holders the
benefits of SEC Rule 144 promulgated under the Act and any other rule or
regulation of the SEC that may at an time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to use commercially reasonable efforts to:
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(a) Make and keep public information
available, as those terms are understood and defined in SEC Rule 144, at all
times after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) File with the SEC in a timely manner all
reports and other documents required of the Company under the Act and the 1934
Act; and
(c) Furnish to any Holder, so long as the
Holder owns any Registrable Securities, promptly upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
the 1934 Act (at any time after the date on which it becomes subject to such
reporting requirements), or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC that permits the selling of any such securities without registration
or pursuant to such Form S-3.
12. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register
Registrable Securities pursuant to this Agreement may be assigned by a Holder to
a transferee or assignee of such securities who shall, upon such transfer or
assignment, be deemed a "Holder" under this Agreement; provided that the Company
is, within a reasonable period of time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
provided, further, that such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Act and that such transferee or
assignee is (a) a partner or retired partner of any Holder that is a
partnership, (b) a member of the immediate family or a trust for the benefit of
any Holder that is an individual, (c) an entity controlling, controlled by or
under common control with any Holder that is not an individual, (d) a transferee
or assignee that after the transfer or assignment holds (i) 10% of the
Registrable Securities of the transferor, or (ii) Registrable Securities prior
to the transfer, or (e) a constituent member of any Holder that is a limited
liability company.
13. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the
Company shall not, without the prior written consent of the Holders of 25% of
the Registrable Securities then outstanding, enter into any agreement with any
holder or prospective holder of any securities of the Company that would allow
such holder or prospective holder to (a) include such securities in any
registration filed under Section 2, 3 or 4, unless under the terms of such
agreement such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of its securities will
not reduce the amount of the Registrable Securities of the Holders
Registration Rights Agreement 9
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which is included or (b) make a demand registration which could result in such
registration statement being declared effective prior to 180 days of the
effective date of any registration effected pursuant to Section 2.
14. "MARKET STANDOFF" AGREEMENT
The Holders hereby agree that they shall not, to the
extent requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, sell or otherwise transfer or dispose (other than to
donees who agree to be similarly bound) of any Registrable Securities for 180
days following the effective date of a registration statement of the Company
filed under the Act; provided, however, that the foregoing shall not be
effective unless all officers and directors of the Company (whether or not
pursuant to this Agreement) enter into similar agreements and the Company has
used all reasonable efforts to obtain similar agreements from all holders of at
least 1% of the Company's then outstanding Common Stock.
To enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
the Holders (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
15. TERMINATION OF REGISTRATION RIGHTS
The registration rights granted under Sections 2, 3
and 4 of this Agreement shall terminate as to each Holders on the earlier of (a)
the tenth (10th) anniversary of the date of this Agreement and (b) the date on
which all Registrable Securities held by or issuable to such Holder (and its
affiliates) may be sold under Rule 144 during any 90 day period.
15. MISCELLANEOUS
15.1 NOTICES
Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given (a) upon
personal delivery to the party to be notified, (b) upon confirmation of receipt
by fax by the party to be notified, (c) one business day after deposit with a
reputable overnight courier, prepaid for overnight delivery and addressed as set
forth in (d), or (d) three days after deposit with the United States Post
Office, postage prepaid, registered or certified with return receipt requested
and addressed to the party to be notified at the address indicated for such
party on the signature page, or at such other address as such party may
designate by 10 days' advance written notice to the other parties given in the
foregoing manner.
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15.2 AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the
observance of any term may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the holders of a majority of the Registrable
Securities then outstanding. Additional Holders may be added to this Agreement
with such consent by amending SCHEDULE A and adding a signature page executed by
such additional Holder.
15.3 GOVERNING LAW; JURISDICTION; VENUE
This Agreement shall be governed by and construed
under the laws of the State of New York without regard to principles of conflict
of laws. The parties irrevocably consent to the jurisdiction and venue of the
state and federal courts located in New York City in connection with any action
relating to this Agreement.
15.4 SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement shall
inure to the benefit of and be binding on the respective successors and assigns
of the parties as provided herein.
15.5. SEVERABILITY
If one or more provisions of this Agreement are held
to be-unenforceable under applicable law, such provision shall be excluded from
this Agreement, and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
15.6 ENTIRE AGREEMENT; COUNTERPARTS
This Agreement constitutes the entire agreement
between the parties about its subject and supersedes all prior agreements. This
Agreement may be executed in two or more counterparts, which together shall
constitute one instrument.
[Signature page follows]
Registration Rights Agreement 11
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
XXXXXXX EXPLORATION COMPANY
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Its: Vice President
Address:
Xxxxxxx Exploration Company
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
DLJ MB FUNDING III, INC.
By: /s/ Xxx X. Xxxxx
------------------------------------
Xxx X. Xxxxx
Principal
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telefax: 000-000-0000
DLJ ESC II, LP
By: DLJ LBO Plans Management Corporation, its
general partner
By: /s/ Xxx X. Xxxxx
------------------------------------
Xxx X. Xxxxx
Principal
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telefax: 000-000-0000
Registration Rights Agreement
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SCHEDULE A
TO REGISTRATION RIGHTS AGREEMENT
Holder Name Number of Shares
----------- ----------------
DLJ MB Funding III, Inc., 6,036,667
a Delaware corporation
DLJ ESC II, LP, 630,000
a Delaware limited partnership
Registration Rights Agreement
