Exhibit 10.71
First Amendment to
REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is entered into as of March 5, 2001, by and among ▇▇▇▇▇▇▇ Exploration Company, a
Delaware corporation (the "Company"), and the parties listed on Schedule A
hereto.
RECITALS
WHEREAS, pursuant to that certain Registration Rights Agreement dated as
of November 1, 2000 (the "Original Agreement"), by and among the Company and
DLJMB Funding III, Inc., a Delaware corporation and DLJ ESC II, L.P., a Delaware
Limited Partnership (the "Initial Investors"), the Company provided certain
registration rights to the Initial Investors regarding shares of the Company's
common stock issuable upon conversion of warrants issued by the Company to the
Initial Investors;
WHEREAS, each of the Initial Investors and DLJ Merchant Banking Partners
III, L.P., a Delaware Limited Partnership, and DLJ Offshore Partners III, C.V.,
a Netherlands Antilles Limited Partnership (collectively hereinafter referred to
as the "Investors"), and the Company are parties to that certain Securities
Purchase Agreement dated as of March 5, 2001 (the "New Securities Purchase
Agreement");
WHEREAS, each of the Investors is a party to a certain Warrant Certificate
(the "New Warrant Certificate") dated as of March 5, 2001, by and between the
Company and each of such Investors;
WHEREAS, the New Warrant Certificates were executed and delivered in
connection with the consummation of transactions contemplated by the new
Securities Purchase Agreement;
WHEREAS, pursuant to the New Warrant Certificates, each of the Investors
has been issued a warrant (the "New Warrant") to purchase shares of the
Company's common stock, par value $.01 per share; and
WHEREAS, to induce the Investors to enter into the New Warrant
Certificates and the new Securities Purchase Agreement, the Company has agreed
to provide registration rights under the Original Agreement with respect to the
shares issuable upon exercise of the New Warrants.
NOW, THEREFORE, for and in consideration of the foregoing, and other good
and valuable consideration, the sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, do hereby agree as follows:
Section 1. Amendments to the Original Agreement.
(a) The "RECITALS" section of the Original Agreement is amended by deleting such
section entirely and replacing it with the following:
" WHEREAS, each of DLJMB Funding III, Inc. ("MB") and DLJ ESC II,
L.P. ("ESC") (MB and ESC are sometimes hereinafter referred to
collectively as the "Initial Investors") 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, and each of the Initial
Investors and DLJ Merchant Banking Partners III, L.P. ("MBP") and DLJ
Offshore Partners III, C.V. ("Offshore") (the Initial Investors, MBP and
Offshore are sometimes hereinafter referred to collectively as the
"Investors") is a party to a certain Warrant Certificate (the "New Warrant
Certificate") dated as of March 5, 2001, by and between the Company and
such Investor;
WHEREAS, the Warrant Certificates were executed and delivered to the
Initial Investors 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 Initial Investors, and
the New Warrant Certificates were executed and delivered in connection
with the consummation of transactions contemplated by that certain
Securities Purchase Agreement dated as of March 5, 2001 by and among the
Company and the Investors;
WHEREAS, pursuant to the Warrant Certificates, each 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"), and pursuant to the New Warrant Certificates,
each Holder (as defined below) has been issued a warrant (the "New
Warrant") to purchase shares of the Company's Common Stock;
WHEREAS, to induce the Initial Investors to enter into the Warrant
Certificates, and the Investors to enter into the New Warrant Certificates
and the Securities Purchase Agreements described above, the Company has
agreed to grant the registration and other rights contained in this
Agreement;"
(b) The definition of Registrable Securities in Section 1.(d) of the Original
Agreement is amended by deleting such Section 1.(d) entirely and replacing it
with the following:
" (d) "Registrable Securities" means (i) the Common Stock of the
Company issuable or issued upon exercise of the Warrants or the New
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, New 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"
(c) Schedule A to the Original Agreement is amended by deleting such Schedule A
entirely and replacing it with Schedule A to this Agreement.
Section 2. No Other Changes. Except as explicitly amended by this
Amendment, the terms, conditions, rights and obligations under the Original
Agreement shall remain in full force and effect.
Section 3. Counterparts. This Amendment may be executed by the parties
hereto in any number of counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
▇▇▇▇▇▇▇ EXPLORATION COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Its: Vice President
Address:
▇▇▇▇▇▇▇ Exploration Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJMB FUNDING III, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
----------------------------------------
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address:
c/o DLJ LBO Plans Management Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
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DLJ Merchant Banking Partners III, L.P.
By: DLJ Merchant Banking III, Inc.
Managing General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address:
DLJ Merchant Banking Partners III, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ Offshore Partners III, C.V.
By: DLJ Merchant Banking III, Inc.
Managing General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address:
c/o DLJ Offshore Management N.V.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Antilles
Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
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Schedule A
to Registration Rights Agreement
Number of Shares
Holder Name November 1, 2000 March 5, 2001
----------- ---------------- -------------
DLJ MB Funding III, Inc., 6,036,667 141,869
a Delaware corporation
DLJ ESC II, LP, 630,000 371,789
a Delaware limited partnership
DLJ Merchant Banking Partners III, L.P. -0- 1,527,154
DLJ Offshore Partners III, C.V -0- 64,451
--------- ---------
TOTAL 6,666,667 2,105,263
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