EXHIBIT 99.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of September 15, 1999 between Cross
Timbers Oil Company, a Delaware corporation (the "Cross Timbers"), and Whitewine
Holding Company, a Texas corporation ("Whitewine").
Cross Timbers and Whitewine have entered into this Agreement for the
purpose of evidencing an agreement between the parties relating to the grant of
registration rights by Cross Timbers to Whitewine.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and for other good and valuable consideration, the value, receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below:
"LB I Group" means LB I Group, Inc.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Put and Call Agreement" means the Put and Call Agreement dated the date
hereof between Cross Timbers and LB I Group.
"Registrable Securities" means (a) any XTO Shares held by Whitewine and (b)
any securities issued or issuable with respect to the securities referred to in
clause (a) by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such securities
will cease to be Registrable Securities when they have been distributed to the
public pursuant to an offering registered under the Securities Act or sold to
the public in compliance with Rule 144 under the Securities Act (or any similar
rule then in force) or upon the expiration of the holding period that would
permit a non-affiliate to sell XTO Shares without restriction under Rule 144(k)
promulgated by the Securities and Exchange Commission.
"Registration Expenses" means all expenses incident to the registration and
disposition of the Registrable Securities pursuant to this Agreement, including
all registration, filing and applicable national securities exchange fees, all
fees and expenses of complying with state securities or blue sky laws (including
fees and disbursements of counsel to the underwriters or Whitewine in connection
with "blue sky" qualification of the Registrable Securities and determination of
their eligibility for investment under the laws of the various jurisdictions),
all
word processing, duplicating and printing expenses, all messenger and delivery
expenses, the fees and disbursements of counsel for Cross Timbers and of counsel
for any other Person reasonably requested by Whitewine, the fees and expenses of
Cross Timbers's independent public accountants and any other independent public
accountants whose opinions are included in the registration statement, including
the expenses of "cold comfort" letters or any special audits required by, or
incident to, such registration, all fees and disbursements of underwriters
(other than underwriting discounts and commissions), all transfer taxes, the
reasonable fees and expenses of counsel and accountants to Whitewine and all
underwriting discounts and commissions in respect of the Registrable Securities
being registered by Whitewine. In connection with any registration pursuant to
this Agreement, Cross Timbers will not be obligated to pay the fees and expenses
for more than one counsel, other than local and special counsel, or for more
than one firm of accountants representing Whitewine.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Shelf Registration Statement" means any registration statement that
provides for the offering of Registrable Securities on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act (or any similar or successor
rule then in force).
"XTO Shares" means any shares of common stock, par value $.01 per share, of
Cross Timbers.
Except as otherwise provided herein, all capitalized terms used in this
Agreement will have the respective meanings provided in the Merger Agreement.
SECTION 2. Demand Registrations.
2.1 Requests for Demand Registrations. From and after the date of this
Agreement, Whitewine will have the right to require Cross Timbers to effect, and
Cross Timbers will be required to use its best efforts to effect, two
registrations under the Securities Act (the "Demand Registrations") of all or
part of its Registrable Securities; provided that the second Demand Registration
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shall be for all Registrable Securities then owned by Whitewine. Each Demand
Registration will be on Form S-2 or S-3 or any similar or successor shortform
registration, if available, or if such forms are not available to effect a
Demand Registration, such other form of the Securities and Exchange Commission
as is available. If requested by Whitewine, and Cross Timbers is then eligible
to use such a registration, the Demand Registration will be made on a Shelf
Registration Statement. Each request for a Demand Registration will specify the
approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering.
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2.2 Priority on Demand Registrations; Right to Withdraw. Cross Timbers
will not include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of Whitewine. If a
Demand Registration is an underwritten offering and the managing underwriters
advise Cross Timbers that in their opinion the number of Registrable Securities
and, if permitted hereunder, other securities requested to be included in such
offering exceeds the number of Registrable Securities and other securities, if
any, which can be sold in an orderly manner in such offering within a price
range acceptable to Whitewine, Cross Timbers will include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold in an orderly manner within the
acceptable price range of such offering.
2.3 Registration Expenses. All Registration Expenses incurred in
connection with any Demand Registration will be borne by Cross Timbers.
2.4 Selection of Underwriters. Whitewine will have the right to select the
investment bankers and managers to administer each underwritten Demand
Registration. Such investment bankers and managers will be of national
prominence.
2.5 Effective Registration Statement. A registration requested pursuant
to Section 2.1 will not be deemed to have been effected (a) unless a
registration statement with respect thereto has become effective and has been
kept continuously effective for a period of at least 180 days (or such shorter
period terminating when all the Registrable Securities covered by such
registration statement have been sold pursuant thereto), (b) if after it has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Securities and Exchange
Commission or other governmental agency or court for any reason not attributable
to the holders registering Registrable Securities and has not thereafter become
effective or (c) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are not
satisfied or waived.
2.6 Right to Withdraw. If the managing underwriter of any underwritten
offering advises Whitewine that the Registrable Securities covered by the
registration statement cannot be sold in an orderly manner in such offering
within a price range acceptable to Whitewine, then Whitewine will have the right
to notify Cross Timbers in writing that it has determined that the registration
statement be abandoned or withdrawn, in which event Cross Timbers will abandon
or withdraw such registration statement. In the event of such abandonment or
withdrawal, the Demand Registration pursuant to which the registration was
abandoned or withdrawn will not count for purposes of the requests for Demand
Registrations to which Whitewine are entitled under this Agreement, provided
that there will be no more than two withdrawals made pursuant to this Section
2.6.
2.7 Cross Timbers' Purchase Option in Lieu of Demand Registration.
Notwithstanding Section 2.1 above, and in lieu of effecting registration
pursuant to the Demand Registration,
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Cross Timbers will have the right to purchase all of the Registrable Securities
that Whitewine has requested be registered at a price equal to the average
closing price of the Registrable Securities for the 15 trading days immediately
succeeding the date on which the Demand Registration is made as officially
reported by the principal securities exchange on which the XTO Shares are listed
or admitted to trading or, if not so listed or admitted, on the NASDAQ/NMS or,
if not approved for quotation on the NASDAQ/NMS, the average closing bid price
as furnished by the NASD through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information or, if such security is not quoted on
NASDAQ, the price established pursuant to an appraisal conducted by a third
party selected by Whitewine who reasonably is acceptable to Cross Timbers. Cross
Timbers must notify Whitewine whether it intends to exercise its purchase right
within 30 days after the Demand Registration is made. Cross Timbers' failure to
notify Whitewine that Cross Timbers intends to exercise its purchase right
within the time period specified in the immediately-preceding sentence shall
constitute Cross Timbers' election to proceed with registration in accordance
with the Demand Registration and the other provisions of this Agreement. If the
Company exercises its purchase right as outlined above, the closing of the
purchase will occur within five business days following the date on which Cross
Timbers has notified Whitewine that it intends to exercise its purchase right in
accordance with this Section 2.7, with the purchase price payable in immediately
available funds by federal wire transfer.
2.8 Restriction on Demand Registration. Whitewine shall not be able to
deliver notice of a Demand Registration within 90 days following the effective
date of a registration statement filed by Cross Timbers pursuant to Section 2.1.
SECTION 3. Piggyback Registrations.
3.1 Right to Piggyback. From and after any failure by Cross Timbers to
purchase LB I Group's equity interest in Whitewine upon exercise of its put
option pursuant to the terms of the Put and Call Agreement, whenever Cross
Timbers proposes to register any XTO Shares under the Securities Act (other than
pursuant to a Demand Registration and other than registrations relating to a
Rule 145 or other business combination transaction, an offering solely to
employees and/or directors, or registrations on Form X-0, Xxxx X-0 or any
similar or successor forms) and the registration form to be used may be used for
the registration of Registrable Securities (a "Piggyback Registration"), Cross
Timbers will give prompt written notice to Whitewine of its intention to effect
such a registration and of such holders' rights under this Section 3 and will
include in such registration all Registrable Securities with respect to which
Cross Timbers has received a written request for inclusion therein no later than
10 days prior to the effective date of the registration statement. Subject to
the provisions of this Section 3, Cross Timbers will use its best efforts to
effect the registration under the Securities Act of all Registrable Securities
which Cross Timbers has been so requested to register by Whitewine. No
registration effected under this Section 3.1 will relieve Cross Timbers of its
obligation to effect any registration upon request under Section 2.1.
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3.2 Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of Cross Timbers, and the managing
underwriters advise Cross Timbers that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in an orderly manner in such offering within a price range acceptable to
Cross Timbers, Cross Timbers will include in such registration (a) first, the
securities Cross Timbers proposes to sell and the securities requested to be
included therein by the holders that have registration rights with respect to
such securities existing as of the date hereof, (b) second, the Registrable
Securities requested to be included in such registration, and (c) third, other
securities requested to be included in such registration.
3.3 Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of Cross Timbers's
securities, and the managing underwriters advise Cross Timbers that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the holders initially requesting such
registration, Cross Timbers will include in such registration (a) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, and (b) second, other securities requested to be included in such
registration; provided that any securities requested to be included therein by
the holders that have registration rights with respect to such securities
existing as of the date hereof shall receive priority in such registration with
respect to the Registrable Securities to the extent required by such pre-
existing registration rights.
3.4 Piggyback Expenses. All Registration Expenses incurred in connection
with any Piggyback Registration will be borne by Cross Timbers.
3.5 Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment bankers and managers for the
offering must be approved by Whitewine; provided that Registrable Securities
constitute at least 10 percent of the securities to be sold pursuant to such
Piggyback Registration. Such approval will not be unreasonably withheld.
3.6 Right to Withdraw. Whitewine will have the right to withdraw its
request for inclusion of its Registrable Securities in any registration
statement pursuant to Section 4.1 at any time prior to the execution of any
underwriting agreement with respect thereto by giving written notice to Cross
Timbers of its request to withdraw. Any such request for withdrawal will be
irrevocable.
SECTION 4. Holdback Agreement of Cross Timbers. Cross Timbers agrees not
to effect any public sale or distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the
effective date of any underwritten Demand Registration or underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant
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to registrations relating to a Rule 145 or other business combination
transaction, an offering solely to employees and/or directors, or registrations
on Form X-0, Xxxx X-0 or any similar or successor forms), unless the
underwriters managing the registered public offering otherwise agree in writing.
SECTION 5. Registration Procedures. Whenever Whitewine has requested that
any Registrable Securities be registered pursuant to this Agreement, Cross
Timbers will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto Cross Timbers, except as otherwise
provided in this Agreement, will as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
its best efforts to cause such registration statement to become effective;
provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, Cross Timbers will furnish copies of all
such documents proposed to be filed to the counsel selected by Whitewine
("Whitewine's Counsel") and, in an underwritten offering, to counsel for
the underwriters;
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and prospectus as
may be necessary to keep such registration statement effective for a period
of not less than 180 days 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;
(c) furnish, without charge, Whitewine and each underwriter such
number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits), the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as Whitewine or such underwriter may
reasonably request in order to facilitate the disposition of the
Registrable Securities;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as Whitewine reasonably requests, keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition
in such jurisdictions of the Registrable Securities; provided that Cross
Timbers will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
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(e) promptly notify Whitewine (i) when the registration statement
covering such Registrable Securities, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to such registration statement has been filed, and, with respect
to such registration statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Securities and
Exchange Commission for amendments or supplements to such registration
statement or the prospectus related thereto or for additional information,
(iii) of the issuance by the Securities and Exchange Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by
Cross Timbers of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose and (v), at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
discovery or happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact required to be stated therein or necessary
to make the statements therein not misleading, and, at the request of
Whitewine, Cross Timbers will prepare and furnish to Whitewine a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact required
to be stated therein or necessary to make the statements therein not
misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by Cross Timbers are
then listed;
(g) enter into such customary agreements (including underwriting
agreements in customary form) in accordance with the provisions of Sections
5.4 and 7.1;
(h) otherwise comply with all applicable rules and regulations of the
Securities and Exchange Commission;
(i) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any common stock included in such registration statement
for sale in any jurisdiction, Cross Timbers will use its best efforts
promptly to obtain the withdrawal of such order; and
(j) obtain a cold comfort letter from Cross Timbers's independent
public accountants, and any other accountants whose opinions are included
in such registration statement, in customary form and covering such matters
of the type customarily covered by cold comfort letters as Whitewine
reasonably requests.
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(k) make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement will satisfy
the provisions of Section 11 (a) of the Securities Act and Rule 158
promulgated thereunder, and promptly furnish to Whitewine a copy of any
amendment or supplement to such registration statement or prospectus;
(l) obtain an opinion of Cross Timbers's and any other counsel
reasonably requested by Whitewine in customary form and covering such
matters of the type customarily covered by opinions of counsel as Whitewine
reasonably requests; provided that such Registrable Securities constitute
at least 10 percent of the securities covered by such registration
statement;
(m) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to Cross Timbers and Whitewines'
Counsel to consummate the disposition of such Registrable Securities;
(n) deliver promptly to Whitewines' Counsel and each underwriter, if
any, participating in the offering of the Registrable Securities, copies of
all correspondence between the Securities and Exchange Commission and Cross
Timbers, its counsel or auditors and all memoranda relating to (and allow
the Whitewines' Counsel and any underwriters counsel to participate in)
discussions with the Securities and Exchange Commission or its staff with
respect to such registration statement; and
(o) make available its employees and personnel and otherwise provide
reasonable assistance to the underwriters (including by participating in
meetings, drafting sessions, due diligence sessions and road shows) in
their marketing of Registrable Securities.
5.1 Unlegended Certificates. In connection with the offering of any
Registrable Securities registered pursuant to this Agreement, Cross Timbers will
promptly after the sale of such Registrable Securities (a) facilitate the timely
preparation and delivery to Whitewine and the underwriters, if any,
participating in such offering, of unlegended certificates representing
ownership of such Registrable Securities being sold in such denominations and
registered in such names as requested by such holders or such underwriters and
(b) instruct any transfer agent and registrar of such Registrable Securities to
release any stop transfer orders with respect to any such Registrable
Securities.
5.2 No Required Sale. Nothing in this Agreement will be deemed to create
an independent obligation on the part of Whitewine to sell any Registrable
Securities pursuant to any effective registration statement.
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5.3 Rule 144. Cross Timbers will take all actions reasonably necessary to
enable Whitewine to sell such securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 or
any similar rule or regulation hereafter adopted by the Securities and Exchange
Commission including, without limiting the generality of the foregoing, filing
on a timely basis all reports required to be filed by the Securities Exchange
Act. Upon the request of Whitewine, Cross Timbers will deliver to such holder a
written statement as to whether it has complied with such requirements.
5.4 Underwriting Agreement. If any Demand Registration is an underwritten
offering, Cross Timbers will enter into a customary underwriters agreement with
a managing underwriter or underwriters which will be reasonably satisfactory in
form and substance to Whitewine and will contain such representations and
warranties by, and such other agreements on the part of, Cross Timbers and such
other terms as are generally prevailing in agreements of that type, including
customary provisions relating to indemnification and contribution. Whitewine
may, at its option, be a party to such underwriting agreement and require that
any or all of the representations and warranties by, and other agreements on
behalf of, Cross Timbers to and for the benefit of the underwriters also be made
to and for the benefit of Whitewine and that any and all of the conditions
precedent to the obligations of such underwriters be conditions precedent to the
obligations of Whitewine.
SECTION 6. Indemnification.
6.1 Parent Corporation Indemnification. Cross Timbers agrees to indemnify,
to the fullest extent permitted by law, Whitewine, its directors, officers,
stockholders, agents and affiliates and each Person who controls Whitewine
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses, joint or several, caused by (a) any untrue or alleged
untrue statement of material fact contained in any registration statement,
prospectus, summary prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, (b) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (c) any violation by Cross Timbers of any federal,
state or common law, rule or regulation applicable to Cross Timbers or relating
to action required of or inaction by Cross Timbers in connection with such
registration, except insofar as such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, prospectus,
summary prospectus, preliminary prospectus, amendment or supplement which is
contained in written information furnished to Cross Timbers through an
instrument duly executed by or on behalf of Whitewine, specifically stating that
it is for use in the preparation thereof, or by Whitewine's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after Cross Timbers has furnished Whitewine with a
sufficient number of copies of the same. In connection with an underwritten
offering, Cross Timbers will indemnify the underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same
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extent as provided above with respect to the indemnification of the holders of
Registrable Securities.
6.2 Whitewine Indemnification. In connection with any registration
statement in which Whitewine is participating, Whitewine will furnish to Cross
Timbers in writing such information and affidavits as Cross Timbers reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify Cross Timbers,
its directors and officers and each Person who controls Cross Timbers (within
the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus, summary
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, but
only to the extent that such untrue statement or omission is contained in any
information or affidavit so furnished by Whitewine through an instrument duly
executed by or on behalf of Whitewine, specifically stating that it is for use
in the preparation thereof, or resulting from Whitewine's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after Cross Timbers has furnished Whitewine with a
sufficient number of copies of the same; provided that the liability of
Whitewine will be limited to the amount of proceeds (net of expenses and
underwriting discounts and commissions) received by Whitewine in the offering
giving rise to such liability.
6.3 Resolution of Claims. 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
of any indemnified party to give notice as provided herein will not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and will not relieve the indemnifying
party from any liability which it may have to the indemnified party otherwise
than under this Section 6) 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. If such defense is assumed, 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). 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, other than local and special 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. No indemnifying party will, without the consent of the 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.
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6.4 Survival. The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any director, officer, stockholder, agent,
affiliate or controlling Person of such indemnified party and will survive the
transfer of securities.
6.5 Contribution. If the indemnification provided for in this Section 6
is for any reason held by a court to be unavailable to an indemnified party
under Section 6.1 or 6.2 hereof in respect of any loss, claim, damage, liability
and expenses, or any action in respect thereof, then, in lieu of the amount paid
or payable under Section 6.1 or 6.2 hereof, the indemnified party and the
indemnifying party under Section 6.1 or 6.2 hereof will contribute to the
aggregate losses, claims, damages, liabilities and expenses (including legal or
other expenses reasonably incurred in connection with investigating the same),
(a) 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,
which resulted in such loss, claim, damage, liability or expense, or action in
respect thereof, with respect to the statements or omissions which resulted in
such loss, claim, damage, liability or expense, or action in respect thereof, as
well as any other relevant equitable considerations, or (b) if the allocation
provided by clause (a) above is not permitted by applicable, law, in such
proportion as is appropriate to reflect not only the relative fault but also the
relative benefits received by the indemnifying party and the indemnified party
from the offering of the securities covered by such registration statement as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 6.5 were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to in the preceding sentence of this Section 6.5. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) will be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. In addition, no Person will be
obligated to contribute hereunder any amounts in payment for any settlement of
any action or claim effected without such Person's consent, which consent will
not be unreasonably withheld. Notwithstanding anything in this Section 6.5 to
the contrary, no indemnifying party (other than Cross Timbers) will be required
to contribute any amount in excess of the proceeds (net of expenses and
underwriting discounts and commissions) received by such party from the sale of
the Registrable Securities in the offering to which the losses, claims, damages,
liabilities or expenses of the indemnified parties relate.
6.6 Other Indemnification. Indemnification and contribution similar to
that specified in the preceding subsections of this Section 6 (with appropriate
modifications) will be given by Cross Timbers and Whitewine with respect to any
required registration or other qualification of securities under any federal,
state or blue sky law or regulation of any governmental authority other than the
Securities Act. The indemnification agreements contained in this Section 6 will
be in addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract.
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6.7 Indemnification Payments. The indemnification and contribution
required by this Section 6 will be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
SECTION 7. Participation in Registrations.
7.1 Required Actions. No Person may participate in any registration
hereunder which is underwritten unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents consistent
with the terms of this Agreement; provided that no holder of Registrable
Securities included in any underwritten registration will be required to make
any representations or warranties to Cross Timbers or the underwriters other
than representations and warranties regarding such holder and such holder's
intended method of distribution and any liability of such holder to any
underwriter or other Person under such underwriting agreement will be limited to
liability arising from breach of its representations and warranties and will be
limited to an amount equal to the proceeds (net of expenses and underwriting
discounts and commissions) that it derives from such registration.
7.2 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, Cross Timbers will give Whitewine, its underwriters,
if any, and its counsel, accountants and other representatives and agents the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Securities and Exchange
Commission, and each amendment thereof or supplement thereto, and give each of
them such reasonable access to its books and records and such reasonable
opportunities to discuss the business of Cross Timbers with its officers and
employees and the independent public accountants who have certified its
financial statements, and supply all other information reasonably requested by
each of them, as is necessary or appropriate, in the opinion of Whitewine and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
SECTION 8. Miscellaneous.
8.1 No Inconsistent Agreements. The rights granted to Whitewine hereunder
do not in any way conflict with and are not inconsistent with any other
agreements to which Cross Timbers is a party or by which it is bound. Cross
Timbers is not a party to and will not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to Whitewine in this Agreement.
8.2 Remedies. The parties agree that irreparable damage would occur in the
event that the provisions of this Agreement were not performed in accordance
with their specific terms. It is
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accordingly agreed that the parties will be entitled to specific performance of
the terms of this Agreement, without posting a bond or other security, this
being in addition to any other remedy to which they are entitled at law or in
equity.
8.3 Consent to Amendments. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended and Cross Timbers may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if Cross Timbers has obtained the written consent of
Whitewine. No other course of dealing between Cross Timbers and Whitewine or
any delay in exercising any rights hereunder or under the Certificate of
Incorporation will operate as a waiver of any rights of Whitewine.
8.4 Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for Whitewine's benefit as a holder of
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of such Registrable Securities, each of which will be deemed a
party to this Agreement.
8.5 Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
8.6 Counterparts; Effectiveness. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
8.7 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
8.8 Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally to the
recipient or when sent to the recipient by telecopy (receipt confirmed), one
business day after the date when sent to the recipient by reputable express
courier service (charges prepaid) or three business days after the date when
mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
will be sent to Cross Timbers and Whitewine at the addresses indicated below:
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If to Cross Timbers:
Cross Timbers Oil Company
000 Xxxxxxx Xx., Xxx. 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. XxXxxxxx, Vice President
Facsimile No: (000) 000-0000
If to Whitewine:
Whitewine Holding Company
c/x Xxxxxx Brothers Inc.
3 World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Facsimile No: (212)
or to such other address or to the attention of such other party as the
recipient party has specified by prior written notice to the sending party.
8.9 No Third-Party Beneficiaries. This Agreement will not confer any
rights or remedies upon any Person other than Cross Timbers and Whitewine and
their respective successors and permitted assigns.
8.10 Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the parties and supersedes any
prior understandings, agreements, or representations by or among the parties,
written or oral, that may have related in any way to the subject matter hereof.
8.11 Consent to Jurisdiction. Each of the parties to this Agreement
submits to the jurisdiction of any state or federal court sitting in the
Southern District of New York any action or proceeding arising out of or
relating to this Agreement, agrees that all claims in respect of the action or
proceeding may be heard and determined in any such court, and agrees not to
bring any action or proceeding arising out of or relating to this Agreement in
any other court. Each of the parties to this Agreement waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety or other security that might be required of any other
party with respect thereto.
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8.12 GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY
AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW, AND
NOT THE LAW OF CONFLICTS, OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first written above.
CROSS TIMBERS OIL COMPANY
By /S/ XXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
WHITEWINE HOLDING COMPANY
By: /S/ XXXX X. O'REAR
-------------------------------------
Name: Xxxx X. O'Rear
Title: Vice President and Treasurer
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