1
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
FOR
MIDLAND HOLDERS
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement") dated as of ________________, 1998, is entered into by and among
Vista Energy Resources, Inc., a Delaware corporation (including its successors,
the "Company"), and the security holders listed on the signature pages hereof.
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
"Advice" shall have the meaning provided in Section 2.5 hereof.
"Affiliate" means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with that Person. For purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
"Business Day" means a day that is not a Legal Holiday.
"Common Stock" means shares of the Common Stock, $.01 par value per
share, of the Company, and any capital stock into which such Common Stock
thereafter may be changed.
"Common Stock Equivalents" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants (including
Exchange Warrants), options, convertible securities or indebtedness,
exchangeable securities or indebtedness, or other rights, exercisable for or
convertible or exchangeable into, directly or indirectly, Common Stock of the
Company and securities convertible or exchangeable into Common Stock of the
Company, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
2
"Demand Registration" shall have the meaning set forth in Section
2.1.1 hereof.
"Demand Request" shall have the meaning set forth in Section 2.1.1
hereof.
"Effective Time" means the filing of the articles of merger for the
Merger with the Texas Secretary of State, or at such later time specified in
such articles of merger.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Warrant" means a warrant that is exercisable for shares of
Common Stock and which is evidenced by an agreement in the form and substance
of Exhibit A hereto.
"Exchange Agreement" means an Exchange Agreement in the form and
substance of Exhibit A hereto as such agreement may hereafter be amended.
"Excluded Registration" means a registration under the Securities Act
of (i) securities pursuant to one or more Demand Registrations pursuant to
Section 2 hereof, (ii) securities registered on Form S-8 or any similar
successor form and (iii) securities registered to effect the acquisition of or
combination with another Person, including the registration of Common Stock
contemplated in connection with the Merger.
"Holder" means (i) a securityholder listed on the signature page
hereof and (ii) any direct or indirect transferee of any such securityholder
who shall become a party to this Registration Rights Agreement.
"Inspectors" shall have the meaning provided in Section 2.4(x) hereof.
"Legal Holiday" shall have the meaning provided in Section 3.2 hereof.
"Material Adverse Effect" shall have the meaning provided in Section
2.1.4 hereof.
"Merger" means the merger of Midland Merger Co., a Texas corporation
and a direct wholly-owned subsidiary of Vista Energy Resources, Inc. with and
into Midland Resources, Inc., with Midland Resources, Inc. being the surviving
corporation.
"NASD" shall have the meaning provided in Section 2.6 hereof.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
2
3
"Records" shall have the meaning provided in Section 2.4(x) hereof.
"Registrable Shares" means at any time the shares of Common Stock
issuable to the Holders upon the exercise of an Exchange Warrant; provided,
however, that Registrable Shares shall not include any shares (i) the sale of
which has been registered pursuant to the Securities Act and which shares have
been sold pursuant to such registration or (ii) which have been sold pursuant
to Rule 144 or 144A of the SEC under the Securities Act. Registrable Shares
shall also include any shares of Common Stock or other equity securities issued
with respect thereto by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Registration Expenses" shall have the meaning provided in Section 2.6
hereof.
"Registration Rights Agreement" means this Registration Rights
Agreement, as such from time to time may be amended.
"Regulation D" means Regulation D promulgated under the Securities Act
by the SEC.
"Requesting Holders" shall have the meaning provided in Section
2.1.1(a) hereof.
"Required Filing Date" shall have the meaning provided in Section
2.1.1(b) hereof.
"Required Holders" means Holders who then own beneficially more than
66-2/3% of the aggregate number of shares of Common Stock subject to this
Registration Rights Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933 and the rules and
regulations promulgated by the SEC thereunder.
"Seller Affiliates" shall have the meaning provided in Section 2.7.1
hereof.
"Subsidiary" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting
power, under ordinary circumstances, to elect directors, is at the time,
directly or indirectly, owned by such Person, by one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person, and
(ii) any other Person (other than a corporation) in which such Person, a
subsidiary of such Person or such Person and one or more subsidiaries of such
Person, directly or indirectly, at the date of determination thereof, has (x)
at least a majority ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"Suspension Notice" shall have the meaning provided in Section 2.5
hereof.
3
4
SECTION 1.2 Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words
in the plural include the singular;
(4) provisions apply to successive events and
transactions; and
(5) "herein," "thereof" and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.1 Demand Registration.
2.1.1 Request for Registration.
(a) At any time after the first anniversary of
the Effective Time, any Holder or Holders may request the Company, in
writing (a "Demand Request"), to effect the registration under the
Securities Act of all or part of its or their Registrable Shares (a
"Demand Registration"); provided that the Registrable Shares proposed
to be sold by the Holders requesting a Demand Registration (the
"Requesting Holders," which term shall include parties deemed
"Requesting Holders" pursuant to Section 2.1.5 hereof) represent, in
the aggregate, more than 50% of the total number of Registrable Shares
held by all Holders.
(b) Each Demand Request shall specify the number
of Registrable Shares proposed to be sold. Subject to Section 2.1.6,
the Company shall file the Demand Registration within 90 days after
receiving a Demand Request (the "Required Filing Date") and shall use
all commercially reasonable efforts to cause the same to be declared
effective by the SEC as promptly as practicable after such filing;
provided, that the Company need effect only two Demand Registrations
(only one of which shall be in the form of a "firm commitment"
underwritten offering); provided, that if any Registrable Shares
requested to be registered pursuant to a Demand Request under this
Section 2.1 are excluded from a registration pursuant to Section 2.1.4
below, the Holders shall have the right, with respect to each such
exclusion, to one additional Demand Registration under this Section
2.1 with respect to such excluded Registrable Shares; provided,
further, that the Company shall not
4
5
be required hereunder to effect more than one Demand Registration
hereunder during any 12 month period. A Demand Registration may be
made hereunder for the Company to prepare and file a "shelf"
registration statement on an appropriate form pursuant to Rule 415
under the Securities Act (or any similar rule that may be adopted by
the SEC) with respect to the resale by the Holders of the Registrable
Shares, providing for such plan of distribution as may be specified in
the Demand Request. The Company shall maintain the effectiveness of
the shelf registration statement until such time as all Registrable
Shares subject thereto are sold, and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by the shelf registration statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such shelf registration statement.
2.1.2 Effective Registration and Expenses. A registration
will not count as a Demand Registration until it has become effective (unless
the Requesting Holders withdraw all their Registrable Shares and the Company
has performed its obligations hereunder in all material respects, in which case
such demand will count as a Demand Registration unless the Requesting Holders
pay all Registration Expenses, as hereinafter defined, in connection with such
withdrawn registration); provided, that if, after it has become effective, an
offering of Registrable Shares pursuant to a registration is interfered with by
any stop order, injunction, or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
2.1.3 Selection of Underwriters. As requested by the
Requesting Holders, the offering of Registrable Shares pursuant to a Demand
Registration shall be in the form of either (a) a resale registration or (b)
subject to Section 2.1.1(b), a "firm commitment" underwritten offering. If
applicable, the Requesting Holders of a majority of the Registrable Shares to
be registered in a Demand Registration shall select the investment banking firm
or firms to manage the underwritten offering; provided that such selection
shall be subject to the consent of the Company, which consent shall not be
unreasonably withheld.
2.1.4 Priority on Demand Registrations. In the case of a
Demand Registration in the form of a "firm commitment" underwritten offering,
no securities to be sold for the account of any Person (including the Company)
other than a Requesting Holder shall be included in a Demand Registration
unless the managing underwriter or underwriters shall advise the Company or the
Requesting Holders in writing that the inclusion of such securities will not
materially and adversely affect the price or success of the offering (a
"Material Adverse Effect"). Furthermore, in the event the managing underwriter
or underwriters shall advise the Company or the Requesting Holders that even
after exclusion of all securities of other Persons pursuant to the immediately
preceding sentence, the amount of Registrable Shares proposed to be included in
such Demand Registration by Requesting Holders is sufficiently large to cause a
Material Adverse Effect, the Registrable Shares of the Requesting Holders to be
included in such Demand Registration shall equal the number of shares which the
Company is so advised can be sold in such offering without a Material Adverse
Effect and such shares shall be allocated pro rata among the Requesting Holders
on the basis of the
5
6
number of Registrable Shares requested to be included in such registration by
each such Requesting Holder.
2.1.5 Rights of Nonrequesting Holders. Upon receipt of any
Demand Request, the Company shall promptly (but in any event within 20 days)
give written notice of such proposed Demand Registration to all other Holders,
who shall have the right, exercisable by written notice to the Company within
20 days of their receipt of the Company's notice, to elect to include in such
Demand Registration such portion of their Registrable Shares as they may
request. All Holders requesting to have their Registrable Shares included in a
Demand Registration in accordance with the preceding sentence shall be deemed
to be "Requesting Holders" for purposes of this Section 2.1.
2.1.6 Deferral of Filing. The Company may defer the filing
(but not the preparation) of a registration statement required by Section 2.1
until a date not later than 180 days after the Required Filing Date (or, if
longer, 180 days after the effective date of the registration statement
contemplated by clause (ii) below) if (i) at the time the Company receives the
Demand Request, the Company or any of its Subsidiaries are engaged in
confidential negotiations or other confidential business activities, disclosure
of which would be required in such registration statement (but would not be
required if such registration statement were not filed), and the Board of
Directors of the Company determines in good faith that such disclosure would be
materially detrimental to the Company and its stockholders or would have a
material adverse effect on any such confidential negotiations or other
confidential business activities, or (ii) prior to receiving the Demand
Request, the Board of Directors had determined to effect a registered
underwritten public offering of the Company's securities for the Company's
account and the Company had taken substantial steps (including, but not limited
to, selecting a managing underwriter for such offering) and is proceeding with
reasonable diligence to effect such offering. A deferral of the filing of a
registration statement pursuant to this Section 2.1.6 shall be lifted, and the
requested registration statement shall be filed forthwith, if, in the case of a
deferral pursuant to clause (i) of the preceding sentence, the negotiations or
other activities are disclosed or terminated, or, in the case of a deferral
pursuant to clause (ii) of the preceding sentence, the proposed registration
for the Company's account is abandoned. In order to defer the filing of a
registration statement pursuant to this Section 2.1.6, the Company shall
promptly (but in any event within 20 days), upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an
executive officer of the Company stating that the Company is deferring such
filing pursuant to this Section 2.1.6 and a general statement of the reason for
such deferral and an approximation of the anticipated delay. Within 20 days
after receiving such certificate, the holders of a majority of the Registrable
Shares held by the Requesting Holders and for which registration was previously
requested may withdraw such Demand Request by giving notice to the Company; if
withdrawn, the Demand Request shall be deemed not to have been made for all
purposes of this Agreement. The Company may defer the filing of a particular
registration statement pursuant to this Section 2.1.6 only once.
6
7
SECTION 2.2 Piggyback Registrations.
2.2.1 Right to Piggyback. Each time the Company proposes
to register any of its equity securities (other than pursuant to an Excluded
Registration) under the Securities Act for sale to the public (whether for the
account of the Company or the account of any securityholder of the Company) and
the form of registration statement to be used permits the registration of
Registrable Shares, the Company shall give prompt written notice to each Holder
of Registrable Shares (which notice shall be given not less than 30 days prior
to the effective date of the Company's registration statement), which notice
shall offer each such Holder the opportunity to include any or all of its or
his Registrable Shares in such registration statement, subject to the
limitations contained in Section 2.2.2 hereof. Each Holder who desires to have
its or his Registrable Shares included in such registration statement shall so
advise the Company in writing (stating the number of shares desired to be
registered) within 20 days after the date of such notice from the Company. Any
Holder shall have the right to withdraw such Holder's request for inclusion of
such Holder's Registrable Shares in any registration statement pursuant to this
Section 2.2.1 by giving written notice to the Company of such withdrawal.
Subject to Section 2.2.2 below, the Company shall include in such registration
statement all such Registrable Shares so requested to be included therein;
provided, however, that the Company may at any time withdraw or cease
proceeding with any such registration if it shall at the same time withdraw or
cease proceeding with the registration of all other equity securities
originally proposed to be registered.
2.2.2 Priority on Registrations. If the Registrable Shares
requested to be included in the registration statement by any Holder differ
from the type of securities proposed to be registered by the Company and the
managing underwriter advises the Company (or if the proposed offering is not
underwritten, if the Company should determine in good faith) that due to such
differences the inclusion of such Registrable Shares would cause a Material
Adverse Effect, then (i) the number of such Holder's or Holders' Registrable
Shares to be included in the registration statement shall be reduced to an
amount which, in the judgment of the managing underwriter (or, if applicable,
the Company), would eliminate such Material Adverse Effect or (ii) if no such
reduction would, in the judgment of the managing underwriter (or, if
applicable, the Company), eliminate such Material Adverse Effect, then the
Company shall have the right to exclude all such Registrable Shares from such
registration statement provided no other securities of such type are included
and offered for the account of any other Person in such registration statement.
Any partial reduction in number of Registrable Shares to be included in the
registration statement pursuant to clause (i) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Holder's
requested shares bears to the total number of shares requested to be included
in such registration statement by all Persons (including Requesting Holders)
who have requested (pursuant to contractual registration rights) that their
shares be included in such registration statement. If the Registrable Shares
requested to be included in the registration statement are of the same type as
the securities being registered by the Company and the managing underwriter
advises the Company (or if the proposed offering is not underwritten, if the
Company should determine in good faith) that the inclusion of such Registrable
Shares would cause a Material Adverse Effect, the Company will be obligated to
include in such registration statement, as to each Requesting Holder, only a
portion of
7
8
the shares such Holder has requested be registered equal to the ratio which
such Holder's requested shares bears to the total number of shares requested to
be included in such registration statement by all Persons (including Requesting
Holders) who have requested (pursuant to contractual registration rights) that
their shares be included in such registration statement. If as a result of the
provisions of this Section 2.2.2 any Holder shall not be entitled to include
all Registrable Securities in a registration that such Holder has requested to
be so included, such Holder may withdraw such Holder's request to include
Registrable Shares in such registration statement. No Person may participate
in any registration statement hereunder unless such Person (x) agrees to sell
such person's Registrable Shares on the basis provided in any underwriting
arrangements approved by the Company and (y) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements; provided, however, that no such Person shall be required to make
any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person's ownership of
his or its Registrable Shares to be sold or transferred free and clear of all
liens, claims, and encumbrances, (ii) such Person's power and authority to
effect such transfer, and (iii) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided further, however, that
the obligation of such Person to indemnify pursuant to any such underwriting
arrangements shall be several, not joint and several, among such Persons
selling Registrable Shares, and the liability of each such Person will be in
proportion to, and provided further that such liability will be limited to, the
net amount received by such Person from the sale of his or its Registrable
Shares pursuant to such registration.
2.3 Holdback Agreement. Unless the managing underwriter otherwise
agrees, each of the Company and the Holders agrees (and the Company agrees, in
connection with any underwritten registration, to use its reasonable efforts to
cause its Affiliates to agree) not to effect any public sale or private offer
or distribution of any Common Stock or Common Stock Equivalents during the ten
Business Days prior to the effectiveness under the Securities Act of any
underwritten registration and during such time period after the effectiveness
under the Securities Act of any underwritten registration (not to exceed 180
days) (except, if applicable, as part of such underwritten registration) as the
Company and the managing underwriter may agree.
2.4 Registration Procedures. Whenever any Holder has requested
that any Registrable Shares be registered pursuant to this Registration Rights
Agreement, the Company will use all commercially reasonable efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(i) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
(ii) prepare and file with the SEC such amendments, post-effective
amendments, and supplements to such registration statement and the prospectus
used in connection therewith as may
8
9
be necessary to keep such registration statement effective (x) in the case of a
"firm commitment" underwritten offering, for a period of not less than 180 days
(or such lesser period as is necessary for the underwriters in an underwritten
offering to sell unsold allotments) and (y) in the case of a resale
registration, until all Registrable Shares subject thereto are sold, and comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(iii) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus), any documents incorporated by reference therein and such other
documents as such seller or underwriters may reasonably request in order to
facilitate the disposition of the Registrable Shares owned by such seller or
the sale of such securities by such underwriters (it being understood that,
subject to Section 2.5 and the requirements of the Securities Act and
applicable state securities laws, the Company consents to the use of the
prospectus and any amendment or supplement thereto by each seller and the
underwriters in connection with the offering and sale of the Registrable Shares
covered by the registration statement of which such prospectus, amendment or
supplement is a part);
(iv) use all commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the managing underwriter reasonably requests; use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process in any such jurisdiction);
(v) promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) 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, (B) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (C) of the happening of any event which makes any
statement made in a registration statement or related prospectus untrue or
which requires the making of any changes in such registration statement,
prospectus or documents so that they 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 misleading, and, as promptly as
practicable thereafter, prepare and file with the SEC and furnish a supplement
or amendment to such prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Shares, such prospectus will not contain any
untrue
9
10
statement of a material fact or omit a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(vi) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 30 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall
cover said 12-month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K, and 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act;
(vii) if requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or any seller reasonably requests
to be included therein, including, without limitation, with respect to the
Registrable Shares being sold by such seller, the purchase price being paid
therefor by the underwriters and with respect to any other terms of the
underwritten offering of the Registrable Shares to be sold in such offering,
and promptly make all required filings of such prospectus supplement or
post-effective amendment;
(viii) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into a registration statement (in
the form in which it was incorporated), deliver a copy of each such document to
each seller;
(ix) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall not
bear any restrictive legends unless required under applicable law) representing
securities sold under any registration statement, and enable such securities to
be in such denominations and registered in such names as the managing
underwriter or such sellers may request and keep available and make available
to the Company's transfer agent prior to the effectiveness of such registration
statement a supply of such certificates;
(x) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any such seller or underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and properties
of the Company (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any such Inspector in connection with such registration statement; provided,
that, unless the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph (x) if (A) the Company believes, after
consultation with counsel for the Company, that to do so would cause the
Company to forfeit an attorney-client privilege that was applicable to such
information or (B) if either (1) the Company has
10
11
requested and been granted from the SEC confidential treatment of such
information contained in any filing with the SEC or documents provided
supplementally or otherwise or (2) the Company reasonably determines in good
faith that such Records are confidential and so notifies the Inspectors in
writing unless prior to furnishing any such information with respect to (A) or
(B) such Holder of Registrable Securities requesting such information agrees to
enter into a confidentiality agreement in customary form and subject to
customary exceptions; and provided, further that each Holder of Registrable
Securities agrees that it will, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action and to
prevent disclosure of the Records deemed confidential;
(xi) furnish to each seller and underwriter a signed counterpart of
(A) an opinion or opinions of counsel to the Company, and (B) a comfort letter
or comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(xii) cause the Registrable Shares included in any registration
statement to be (A) listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed, or (B) authorized to
be quoted and/or listed (to the extent applicable) on the National Association
of Securities Dealers, Inc. Automated Quotation System or the Nasdaq National
Market if the Registrable Shares so qualify;
(xiii) provide a CUSIP number for the Registrable Shares included in
any registration statement not later than the effective date of such
registration statement;
(xiv) cooperate with each seller and each underwriter participating
in the disposition of such Registrable Shares and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc.;
(xv) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act;
(xvi) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
(xvii) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Registrable Shares;
(xviii) enter into such agreements (including underwriting agreements
in the managing underwriter's customary form) as are customary in connection
with an underwritten registration; and
11
12
(xix) advise each seller of such Registrable Shares, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the SEC suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding for such purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order
should be issued.
2.5 Suspension of Dispositions. Each Holder agrees by acquisition
of any Registrable Shares that, upon receipt of any notice (a "Suspension
Notice") from the Company of the happening of any event of the kind described
in Section 2.4(v)(C) such Holder will forthwith discontinue disposition of
Registrable Shares until such Holder's receipt of the copies of the
supplemented or amended prospectus, or until it is advised in writing (the
"Advice") by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the
Company, such Holder will deliver to the Company all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Shares current at the time of receipt of such notice.
In the event the Company shall give any such notice, the time period regarding
the effectiveness of registration statements set forth in Section 2.4(ii)
hereof shall be extended by the number of days during the period from and
including the date of the giving of the Suspension Notice to and including the
date when each seller of Registrable Shares covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus or the Advice. The Company shall use its commercially reasonable
efforts and take such actions as are reasonably necessary to render the Advice
as promptly as practicable.
2.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article 2 including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
required to be made with the National Association of Securities Dealers, Inc.
("NASD") (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Schedule E of the By-Laws
of the NASD, and of its counsel), as may be required by the rules and
regulations of the NASD, fees and expenses of compliance with securities or
"blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Shares), rating
agency fees, printing expenses (including expenses of printing certificates for
the Registrable Shares in a form eligible for deposit with Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by a holder of Registrable Shares), messenger and delivery expenses,
the Company's internal expenses (including without limitation all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with any listing of the
Registrable Shares, fees and expenses of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or "cold comfort" letters required by or incident to such performance),
securities acts liability insurance (if the Company elects to obtain such
insurance), the fees and expenses of any special experts retained by the
Company in connection with such registration, and the fees and expenses of
other persons retained by the Company and reasonable fees and expenses of one
firm of counsel for the sellers (which shall be selected by the holders of a
majority of the Registrable Shares being included in any particular
registration
12
13
statement) (all such expenses being herein called "Registration Expenses") will
be borne by the Company whether or not any registration statement becomes
effective; provided that in no event shall Registration Expenses include any
underwriting discounts, commissions, or fees attributable to the sale of the
Registrable Shares or any counsel, accountants, or other persons retained or
employed by the Holders.
2.7 Indemnification.
2.7.1 The Company agrees to indemnify and reimburse, to the
fullest extent permitted by law, each seller of Registrable Shares, and each of
its employees, advisors, agents, representatives, partners, officers, and
directors and each Person who controls such seller (within the meaning of the
Securities Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") (A) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by Section
2.7.3) based upon, arising out of, related to or resulting from any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus, or preliminary prospectus or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (B) against any and all loss, liability, claim, damage, and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
omission or alleged untrue statement or omission, and (C) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon, arising out
of, related to or resulting from any such untrue statement or omission or
alleged untrue statement or omission, to the extent that any such expense or
cost is not paid under subparagraph (A) or (B) above; except insofar as the
same are made in reliance upon and in strict conformity with information
furnished in writing to the Company by such seller or any Seller Affiliate for
use therein or arise from such seller's or any Seller Affiliate's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such seller or Seller
Affiliate with a sufficient number of copies of the same. The reimbursements
required by this Section 2.7.1 will be made by periodic payments during the
course of the investigation or defense, as and when bills are received or
expenses incurred.
2.7.2 In connection with any registration statement in
which a seller of Registrable Shares is participating, each such seller will
furnish to the Company in writing such information and affidavits as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the fullest extent permitted by law, each such
seller will indemnify the Company and its directors and officers and each
Person who controls the Company (within the meaning of the Securities Act or
the Exchange Act) against any and all losses, claims, damages, liabilities, and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements
13
14
except as limited by Section 2.7.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller
Affiliates specifically for inclusion in the registration statement; provided
that the obligation to indemnify will be several, not joint and several, among
such sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and provided further that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement; provided,
however, that such seller of Registrable Shares shall not be liable in any such
case to the extent that prior to the filing of any such registration statement
or prospectus or amendment thereof or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
2.7.3 Any Person entitled to indemnification hereunder will
(A) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
such notice shall not limit the rights of such Person) and (B) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (X)
the indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying
party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be
unreasonably withheld). If such defense is assumed by the indemnifying party
pursuant to the provisions hereof, such indemnifying party shall not settle or
otherwise compromise the applicable claim unless (1) such settlement or
compromise contains a full and unconditional release of the indemnified party
or (2) the indemnified party otherwise consents in writing. An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party, a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and disbursements of such
additional counsel or counsels.
2.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.7.1 or Section 2.7.2 are
unavailable to or insufficient to hold harmless an
14
15
indemnified party in respect of any losses, claims, damages, liabilities, or
expenses (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, liabilities, or expenses
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party in
connection with the actions which resulted in the losses, claims, damages,
liabilities or expenses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.7.4 were determined by pro rata
allocation (even if the Holders or any underwriters or all of them were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section
2.7.4. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 2.7.3, defending any such
action or claim. Notwithstanding the provisions of this Section 2.7.4, no
Holder shall be required to contribute an amount greater than the dollar amount
by which the net proceeds received by such Holder with respect to the sale of
any Registrable Shares exceeds the amount of damages which such Holder has
otherwise been required to pay by reason of such statement or omission. 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. The Holders'
obligations in this Section 2.7.4 to contribute shall be several in proportion
to the amount of Registrable Shares registered by them and not joint.
If indemnification is available under this Section 2.7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.7.1 and Section 2.7.2 without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.7.4 subject, in the case of the
Holders, to the limited dollar amounts set forth in Section 2.7.2.
2.7.5 The indemnification and contribution provided for
under this Registration Rights Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party
or any officer, director, or controlling Person of such indemnified party and
will survive the transfer of securities.
15
16
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows (or at such other address as may
be substituted by notice given as herein provided):
If to the Company:
Vista Energy Resources, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: C. Xxxxxxx Xxxx
Facsimile: (000) 000-0000
Copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: A. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and
five calendar days after mailing if sent by registered or certified mail
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
16
17
SECTION 3.2 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions at such place
are not required to be open. If a payment date is a Legal Holiday at such
place, payment may be made at such place on the next succeeding day that is not
a Legal Holiday, and no interest on the amount of such payment shall accrue for
the intervening period.
SECTION 3.3 Governing Law.
THIS REGISTRATION RIGHTS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 3.4 Successors and Assigns.
Whether or not an express assignment has been made pursuant to the
provisions of this Registration Rights Agreement, provisions of this
Registration Rights Agreement that are for the Holders' benefit as the holders
of any shares of Common Stock are also for the benefit of, and enforceable by,
all subsequent holders of shares of Common Stock, except as otherwise expressly
provided herein. This Registration Rights Agreement shall be binding upon the
Company, each Holder, and their respective successors and assigns.
SECTION 3.5 Duplicate Originals.
All parties may sign any number of copies of this Registration Rights
Agreement. Each signed copy shall be an original, but all of them together
shall represent the same agreement.
SECTION 3.6 Severability.
In case any provision in this Registration Rights Agreement shall be
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby
SECTION 3.7 No Waivers; Amendments.
3.7.1 No failure or delay on the part of the Company or any
Holder in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company or any Holder at law or in equity or otherwise.
17
18
3.7.2 Any provision of this Registration Rights Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Company and the Required Holders; provided that no
such amendment or waiver shall, unless signed by all of the Holders affected,
(A) amend the provisions of this Section 3.7.2 or (B) change the number of
Holders which shall be required for the Holders or any of them to take any
action under this Section 3.7.2 or any other provision of this Registration
Rights Agreement.
SECTION 3.8 Entire Agreement; No Third Party Beneficiaries.
This Agreement (together with the documents and instruments delivered
by the parties in connection with this Agreement) (a) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (b) is solely for the benefit of the parties hereto and their respective
successors, legal representatives, and assigns and does not confer on any other
person any rights or remedies hereunder.
SECTION 3.9 Termination.
The provisions of this Registration Rights Agreement shall terminate
on the first to occur of (a) December 31, 2008 or (b) the termination of that
certain Agreement and Plan of Merger dated May 22, 1998, among Vista Resources
Partners, L.P., Midland Resources, Inc., Vista Energy Resources, Inc. and
Midland Merger Co.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
18
19
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, all as of the date first written above.
VISTA ENERGY RESOURCES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
HOLDERS:
-----------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address:
---------------------------------
---------------------------------
---------------------------------
[SIGNATURE PAGE TO MIDLAND REGISTRATION RIGHTS AGREEMENT]
