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EXHIBIT 99(a)(3)
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INVESTOR RIGHTS AGREEMENT
BETWEEN
DEVON ENERGY CORPORATION
AND
XXXXXX X. XXXXXXXX
AND
XXXXXXX XXXXX XXXXXXXX
DATED AS OF AUGUST 13, 2001
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TABLE OF CONTENTS
PAGE
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1. CERTAIN DEFINITIONS.................................... C-2
2. REQUESTED REGISTRATION................................. C-3
3. PARENT REGISTRATION.................................... C-3
4. BLACK OUT.............................................. C-4
5. EXPENSES OF REGISTRATION............................... C-5
6. REGISTRATION PROCEDURES................................ C-5
7. INDEMNIFICATION........................................ C-5
8. INFORMATION FROM INVESTORS............................. C-6
9. RULE 144 REPORTING..................................... C-6
10. AMENDMENT.............................................. C-7
11. LOCKUP................................................. C-7
12. TERMINATION............................................ C-7
13. GOVERNING LAW.......................................... C-7
14. ENTIRE AGREEMENT....................................... C-7
15. NOTICES AND DATES...................................... C-8
16. COUNTERPARTS; FACSIMILES............................... C-8
17. FURTHER ASSURANCES..................................... C-8
18. SEVERABILITY........................................... C-9
19. INTERPRETATION......................................... C-9
20. MUTUAL DRAFTING........................................ C-9
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INVESTOR RIGHTS AGREEMENT
This
Investor Rights Agreement (this "Agreement") is made as of August 13,
2001 by and between Devon Energy Corporation, a Delaware corporation (the
"Parent") Xxxxxx X. Xxxxxxxx and Xxxxxxx Xxxxx Xxxxxxxx ("Investors").
RECITALS
WHEREAS, pursuant to the merger contemplated by the Agreement and Plan of
Merger, dated as of August 13, 2001 (the "Merger Agreement"), by and among
Parent, Devon Newco Corporation, and Xxxxxxxx Energy & Development Corp. (the
"Company") ("Merger Agreement"), Investors may acquire shares (the "Shares") of
Parent's common stock, par value $0.10 per share ("Parent Common Stock") in
exchange for their shares of common stock, par value $0.10 per share, of the
Company; and
WHEREAS, Parent is granting Investors certain demand and piggyback
registration rights in connection with Investors' receipt of the Shares pursuant
to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Affiliate" shall mean, with respect to any person, each of such
person's officers, directors, employees and agents, and each other
person controlling such person within the meaning of the Securities Act.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the
time.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance
with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" shall mean the Shares and any shares of
Parent Common Stock issued or issuable in respect of the Shares upon any
stock split, stock dividend, recapitalization, or similar event and held
by Investors until such time as (i) a registration statement covering
such securities has been declared effective by the Commission and such
securities have been disposed of pursuant to such effective registration
statement, or (ii) such securities may be sold pursuant to Rule 145 or
Rule 144 (or any successor or similar rule) under the Securities Act
without regard to the volume of sale restrictions referred to therein,
or (iii) such securities have been transferred and may be sold by the
transferee without registration under the Securities Act, after which
such securities shall no longer be Registrable Securities.
"Registration Expenses" shall mean all expenses incurred by Parent
in complying with Sections 2 and 3 hereof, including all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel and of the accountants for Parent, blue sky
fees and expenses and the expense of any special audits incident to or
required by any such compliance.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the Registrable
Securities registered by Investors and all fees and disbursements of
counsel for Investors.
Capitalized terms used and not defined herein shall have the
respective meanings ascribed to the in the Merger Agreement.
2. Requested Registration.
a. Request for Registration. In case Parent shall receive from
Investors a written request that Parent effect any registration with
respect to any of the Registrable Securities, Parent shall, as soon as
practicable, use reasonable best efforts to effect such registration
(including appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) on Form S-3 or, if Form S-3 is not
available, then on Form S-1 (or any successor forms of registration
statements to such Forms S-3 or S-1 or other available registration
statements) and as would permit or facilitate the sale and distribution
of the Registrable Securities for which registration is requested. The
registration statement filed pursuant to the request of Investors under
this Section 2(a) may include securities of Parent held by other
securityholders of Parent who, by virtue of agreements with Parent, are
entitled to include their securities in any such registration, but
Parent shall have no absolute right to include securities for its own
account in any such registration.
b. Notwithstanding the foregoing, Parent shall not be obligated to
file a registration statement to effect any such registration pursuant
to this Section 2:
i. unless the amount of Registrable Securities for which
registration is requested is at least 5,000,000 shares (as adjusted
for any stock split, stock dividend, recapitalization or similar
event); provided, however, that if the total number of Registrable
Securities held by Investors (but not a transferee of Investors) is
less than 5,000,000 shares (as adjusted to give effect to any stock
split, reverse stock split, stock dividend, recapitalization or any
similar event or transaction), then Investors (but not a transferee
of Investors) may request registration under this Section 2 as to all
but not less than all of such Registrable Securities as may then be
held by Investors; and
ii. after Parent has initiated two such registrations pursuant
to this Section 2 (counting for these purposes only registrations
that have been declared effective).
c. Underwriting. Any offering of securities made under this
Section 2 shall be pursuant to a "firm commitment" underwriting. Parent
(together with Investors) shall enter into an underwriting agreement in
customary form with the managing underwriter selected for such
underwriting by the Investors with the consent of Parent, which consent
shall not be unreasonably withheld. Notwithstanding any other provision
of this Section 2, if the managing underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten,
the managing underwriter may limit the number of Registrable Securities
to be included in such registration to the extent required by such
limitation. If the managing underwriter has not limited the number of
Registrable Securities to be included in such registration, Parent may
include securities for its own account or for the account of others in
such registration if the number of Registrable Securities to be included
in such registration will not thereby be limited.
3. Parent Registration.
a. Notice of Registration. If Parent shall determine to register
any of its securities, either for its own account or the account of a
security holder or holders exercising their respective registration
rights, other than (i) a registration relating solely to employee
benefit plans on
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Form S-8 (or similar successor form), or (ii) a registration on Form S-4
(or similar successor form) relating solely to a Commission Rule 145
transaction, Parent will:
i. promptly give Investors written notice thereof; and
ii. use its reasonable best efforts to include in such
registration (and any related qualification under blue sky laws or
other compliance), and in any underwriting involved therein, all
Registrable Securities specified in a written request to Parent made
within 15 business days after receipt of such written notice by
Investors.
b. Underwriting. If the registration of securities pursuant to
this Section 3 is underwritten, Parent shall so advise Investors as a
part of the written notice given under Section 3(a). In such event,
Investors' right to registration pursuant to this Section 3 shall be
conditioned upon Investors' participation in such underwriting and the
inclusion of Registrable Securities in the underwriting shall be subject
to the limitations provided herein. Parent (together with Investors)
shall enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by Xxxxxx.
Notwithstanding any other provision of this Section 3, if the managing
underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, Parent shall so advise the
holders of securities who have requested to include their securities in
such registration, and the number of shares to be included in such
registration shall be reduced by such minimum number of shares as is
necessary to comply with such limitation, as follows:
i. if the registration was initiated for the account of any
security holder or holders other than Investors (the "Initiating
Holders"), the number of shares reduced shall be (A) first, any
shares sought to be registered by Parent for its own account, (B)
second, if further reductions are required, any shares sought to be
registered by holders of securities other than the Initiating Holders
who have requested to include their securities in such registration,
pro rata based on the number of shares requested to be included in
such registration, and (C) third, if still further reductions are
required, any securities sought to be registered by the Initiating
Holders.
ii. if the registration was initiated by Parent for its own
account, the number of shares reduced shall be (A) first, any shares
sought to be registered by holders of securities who have requested
to include their securities in such registration, pro rata based on
the number of shares requested to be included in such registration
and (B) second, if further reductions are required, shares sought to
be registered by Parent for its own account.
4. Black Out. In the event Parent determines, after a request for
registration has been received from an Investor and prior to the completion
of such registered offering, that it may be in possession of material
undisclosed information with respect to Parent or its securities, (i)
Parent shall notify Investors and request that Investors refrain from
selling any Registrable Securities, and Investors shall refrain from
selling any Registrable Securities, and (ii) Parent shall not be obligated
to file a registration statement or effect any registration, qualification
or compliance of Registrable Securities under Section 2 for a period of not
more than 120 days from the date of such notice (the "Black Out Period"). A
Black Out Period shall end upon the earlier to occur of (i) the full public
disclosure of the material information giving rise to such Black Out
Period, (ii) Parent notifying Investors in writing that the Black Out
Period is terminated and (iii) the 120th day after the date of Parent's
notice of the commencement of the Black Out Period. Notwithstanding the
foregoing, Parent shall not be entitled to declare a Black Out Period prior
to twelve months from the end of a previous Black Out Period if more than
180 days of the immediately preceding 365 days have been subject to a Black
Out Period, and Parent shall only exercise its rights under this Section 4
in good faith and shall not exercise such rights in an effort to frustrate
the Investors' ability to offer to sell and sell their Registrable
Securities.
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5. Expenses of Registration. All Registration Expenses incurred in
connection with a registration pursuant to Sections 2 and 3 shall be borne
by Parent. All Selling Expenses relating to the Registrable Securities
which are registered shall be borne by Investors.
6. Registration Procedures. In the case of each registration effected
by Parent pursuant to this Agreement, Parent will keep Investors advised in
writing, if Investors are participating in such registration, as to the
initiation of each registration and as to the completion thereof. At its
expense, Parent will:
a. prepare and file with the Commission a registration statement
with respect to such securities and use reasonable best efforts to cause
such registration statement to become and remain effective for at least
60 days or until the distribution described in the registration
statement has been completed, whichever first occurs;
b. furnish to Investors, if Investors are participating in such
registration, such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such other
documents as Investors may reasonably request, including correspondence
with the Commission and any exchanges on which Registrable Securities
are listed; and
c. notify Investors, if Investors are participating in such
registration, of any updates or amendments to the prospectus and furnish
to Investors any such updated and/or amended prospectuses.
7. Indemnification.
a. Parent will indemnify Investors with respect to any
registration, qualification or compliance which has been effected
pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of the Securities
Act (the "Underwriters"), against all expenses, claims, losses, damages
or liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation commenced or
threatened arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration, or
based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, or any violation by Parent of the Securities Act or any
state securities law, or any rule or regulation promulgated thereunder,
applicable to Parent in connection with any such registration, and
Parent will reimburse Investors and the Underwriters for any legal and
any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or
action; provided, however, that Parent will not be liable in any such
case to the extent that any such expense, claim, loss, damage or
liability arises out of or is based on any untrue statement or omission,
or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to Parent by Investors
specifically for use therein.
b. Investors will, if Registrable Securities are included in a
registration being effected, indemnify Parent and each of its Affiliates
and the Underwriters, if any, of Parent's securities covered by such a
registration against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the
foregoing incurred in settlement of any litigation commenced or
threatened arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration, or
based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, or any violation by Investors of the Securities Act or any
state securities law, or any rule or regulation promulgated thereunder,
applicable in connection with
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any such registration, and Investors will reimburse Parent, such
Affiliates and the Underwriters for any legal and any other expenses
reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case to the
extent that such untrue statement or omission, or alleged untrue
statement or omission, is made in such registration statement,
prospectus, offering circular or other document incident to any such
registration in reliance upon and in conformity with written information
furnished to Parent by Investors specifically for use therein.
Notwithstanding the foregoing, the liability of Investors under this
subsection (b) shall be limited in an amount equal to the public
offering price of the Shares sold by Investors, unless such liability
arises out of or is based on willful misconduct by Investors.
c. Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and the Indemnifying Party shall have the
option to assume the defense of any such claim or any litigation
resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld); and provided, further, that the
Indemnified Party may participate in such defense at such party's own
expense. The failure of an Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under
this Agreement unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action.
The Indemnifying Party shall not assume such defense for matters as to
which there is a conflict of interest or separate and different
defenses. In the event of a conflict of interest or separate or
different defenses, as determined in the reasonable opinion of counsel
to the Indemnified Party, the Indemnifying Party will pay the reasonable
legal fees and expenses of one counsel to the Indemnified Party. No
claim may be settled without the consent of the Indemnifying Party
(which consent shall not be unreasonably withheld). No Indemnifying
Party, in the defense of any such claim or litigation, shall, except
with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to
such claim or litigation.
d. If the indemnification provided for in Section 7.a. or 7.b. is
unavailable to or insufficient to hold harmless an indemnified party
under Section 7.a. or 7.b. in respect of any expenses, claims, losses,
damages or liabilities (or actions in respect thereof), then each
indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such expenses, claims, losses,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the
other hand in connection with the statements or omissions which resulted
in such expenses, claims, losses, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations.
8. Information from Investors. Investors shall furnish to Parent such
information regarding Registrable Securities being included in any
registration and the distribution proposed by Investors as Parent may
request in writing and as shall be required in connection with any
registration referred to in this Agreement.
9. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time
permit the sale of Registrable Securities to the public without
registration, Parent agrees to use its best efforts to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144 (or any successor or similar rule)
promulgated by the Securities and Exchange Commission under the
Securities Act;
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b. file with the Commission in a timely manner all reports and
other documents required of Parent under the Securities Act and the
Exchange Act; and
c. so long as Investors own any Registrable Securities, promptly
furnish to Investors upon request (i) a statement by Parent as to its
compliance with the reporting requirements of Rule 144 (or any successor
or similar rule), the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or quarterly report of Parent, and such other
publicly filed reports and documents of Parent, and (iii) such other
information in the possession of Parent as Investors may reasonably
request in availing themselves of any rule or regulation of the
Commission allowing Investors to sell any Shares without registration.
10. Amendment. Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in particular
instance and either retroactively or prospectively) only with the written
consent of each of the parties hereto.
11. Lockup. Investors agree that they will not, prior to the date
which is nine months from the Closing Date (as defined in the Merger
Agreement) (the "Lockup Date"), directly or indirectly sell, offer to sell,
grant any option for the sale of, or otherwise dispose of any Shares other
than pursuant to an underwritten registered offering made pursuant hereto
or to a Permitted Transferee (as defined in the Principal Shareholders
Agreement of even date among the Company and the Investors). From and after
the Lockup Date, Investors shall not dispose of Shares in amounts exceeding
1,000,000 Shares per calendar quarter, except pursuant to a registration
statement or to a Permitted Transferee.
12. Termination. This Agreement shall terminate at such time as
Investors can sell all of their remaining Registrable Securities within a
single three-month period pursuant to Rule 144 under the Securities Act (or
any successor or similar rule).
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS. PARENT AND INVESTORS
EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
TEXAS AND OF THE
UNITED STATES OF AMERICA, IN EITHER CASE LOCATED IN DALLAS COUNTY,
TEXAS
(THE "
TEXAS COURTS") FOR ANY LITIGATION ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES NOT TO
COMMENCE ANY LITIGATION RELATING THERETO EXCEPT IN SUCH COURTS), WAIVES ANY
OBJECTION TO THE LAYING OF VENUE OF ANY SUCH LITIGATION IN THE
TEXAS COURTS
AND AGREES NOT TO PLEAD OR CLAIM IN ANY
TEXAS COURT THAT SUCH LITIGATION
BROUGHT THEREIN HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
14. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding rights to
registration. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon the successors
and assigns of the parties hereto.
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15. Notices and Dates. Any notice required to be given hereunder
shall be sufficient if in writing, and sent by facsimile transmission or by
courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
if to Parent, to:
Devon Energy Corporation
00 Xxxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Attention: X. Xxxxx Xxxxxxx
Xxxxxxxxx: (000) 000-0000
and
Duke X. Xxxxx
Xxxxxxxxx: (000) 000-0000
with a copy to:
Xxxxx, Brown & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
if to Investors, to:
Xxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxx Xxxxxxxx
c/o X. Xxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx XXX
Xxxxxxxxx: (000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered, if
delivered personally, by messenger or by courier, or upon confirmation of
receipt if sent by facsimile.
16. Counterparts; Facsimiles. This Agreement may be executed in
several counterparts (by facsimile or original signature), each of which
shall be deemed to be an original, but all of which together shall be
deemed to be one and the same instrument. A signature transmitted by
facsimile shall be treated for all purposes by the parties hereto as an
original and shall be binding upon the party transmitting such signature
without limitation.
17. Further Assurances. The parties hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments or
documents as any other party may reasonably request from time to time in
order to carry out the intent and purposes of this Agreement and the
consummation of the
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transactions contemplated thereby. Neither Parent nor Investors shall
voluntarily undertake any course of action inconsistent with satisfaction
of the requirements applicable to them set forth in this Agreement, and
each shall promptly do all such acts and take all such measures as may be
appropriate to enable them to perform as early as practicable the
obligations herein and therein required to be performed by them.
18. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
19. Interpretation. When a reference is made in this Agreement to
Sections, such references shall be to a Section to this Agreement unless
otherwise indicated. The words "include," "includes" and "including" when
used herein shall be deemed in each case to be followed by the words
"without limitation." Use of any gender herein to refer to any person shall
be deemed to comprehend masculine, feminine, and neuter unless the context
clearly requires otherwise.
20. Mutual Drafting. This Agreement is the joint product of Investors
and Parent, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of Investors and Parent and their
respective legal counsel and advisers and any rule of construction that a
document shall be interpreted or construed against the drafting party shall
not be applicable.
IN WITNESS WHEREOF, the undersigned have executed this
Investor Rights
Agreement as of the date set forth above.
DEVON ENERGY CORPORATION
By:
/s/ X. XXXXX XXXXXXX
----------------------------------
X. Xxxxx Xxxxxxx
Chairman, President and Chief
Executive Officer
/s/ XXXXXX X. XXXXXXXX
------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXX XXXXXXXX
------------------------------------
Xxxxxxx Xxxxx Xxxxxxxx
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