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EXHIBIT 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), made and entered into as of September 30, 1996, by and among
Titan Exploration, Inc., a Delaware corporation (the "Company"), Xxxx X.
Xxxxxxxxx, an individual residing in Midland, Texas ("Xxxxxxxxx"), Natural Gas
Partners, L.P., a Delaware limited partnership ("NGP I"), Natural Gas Partners
II, L.P., a Delaware limited partnership ("NGP II"), Joint Energy Development
Investments Limited Partnership, a Delaware limited partnership ("JEDI"), First
Union Corporation, a North Carolina Corporation ("First Union") and Selma
International Investment Limited, a Delaware corporation ("Selma")
(collectively, Xxxxxxxxx, NGP I, NGP II, JEDI, First Union, and Selma are the
"Owners"), amends and restates in its entirety that certain Registration Rights
Agreement dated as of March 31, 1995, as amended by that certain Amendment No.
1 to the Registration Rights Agreement dated as of December 11, 1995, as
amended by that certain Amendment No. 2 to the Registration Rights Agreement
dated as of September 27, 1996 (the "Original Agreement"), among the Owners,
Titan Resources, L.P., a Texas limited partnership (the "Partnership") and
Titan Resources I, Inc., a Texas corporation (the "General Partner").
1. Background. The Owners are holders of limited partnership
interests ("Units") in the Partnership and common stock ("Stock") of the
General Partner. The Original Agreement grants to the Owners certain
registration rights with respect to the Units. The Company and the Owners are
parties to that certain Exchange Agreement and Plan of Reorganization dated as
of September 30, 1996 (the "Exchange Agreement"), pursuant to which the Owners,
along with the other limited partners of the Partnership, will exchange all of
the outstanding Units and Stock for shares of the Company's common stock, par
value $.01 per share (the "Company Common Stock"), as more fully described in
the Exchange Agreement (the "Proposed Transaction"). The parties hereto desire
to enter into this Agreement in order to give effect to the rights of the
Owners under the Original Agreement by granting to the Owners registration
rights with respect to the Company Common Stock. The execution and delivery of
this Agreement is a condition to the consummation of the Proposed Transaction.
2. Registration under Securities Act, etc.
2.1. Registration on Request.
(a) Concurrently with or from time to time after the Initial
Registration Date, upon the written request of one or more holders of
Registrable Securities, requesting that the Company effect the registration
under the Securities Act of all or a portion of such holders' Registrable
Securities and specifying the intended method of disposition thereof and
whether or not such requested registration is to be an underwritten offering,
the parties hereto agree as follows:
(i) The Company will promptly give written notice of such
requested registration to all other holders of Registrable Securities,
if any;
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(ii) Promptly after providing the notice required by clause (i)
of this Section 2.1(a), and subject to the limitations set forth in
subsection (e) of this Section 2.1, the Company will use its best
efforts to effect the registration under the Securities Act of:
(A) the Registrable Securities which the Company has
been so requested to register by such holders, and
(B) all other Registrable Securities which the Company
has been requested to register by the holders thereof by written
request given to the Company within 30 days after the giving of
such written notice by the Company (which request shall specify
the intended method of disposition of such Registrable
Securities), all to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered.
(b) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by one or more holders of Registrable Securities, no
securities other than Registrable Securities shall be included among the
securities covered by such registration unless (i) the managing underwriter of
such offering shall have advised each holder of Registrable Securities to be
covered by such registration in writing that the inclusion of such other
securities would not adversely affect such offering or (ii) the holders of all
Registrable Securities to be covered by such registration shall have consented
in writing to the inclusion of such other securities.
(c) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and as shall be reasonably acceptable to the
Requisite Holders, and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in their request for such registration. The Company agrees to
include in any such registration statement all information which holders of
Registrable Securities being registered shall reasonably request.
(d) Expenses. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this Section 2.1. Any
Selling Expenses in connection with any registration requested under this
Section 2.1 shall be allocated among all Persons on whose behalf securities of
the Company are included in such registration, on the basis of the respective
amounts of the securities then being registered on their behalf.
(e) Limitations on Requested Registrations. The Company's obligation
to take or continue any action to effect a requested registration under this
Section 2.1 shall be subject to the following:
(i) The Company shall not be required to effect more than three
registrations requested pursuant to this section 2.1; provided that, a
registration requested pursuant to
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this Section 2.1 shall not be deemed to have been effected (A) unless a
registration statement with respect thereto has been declared effective
for a period of at least 90 days, (B) if after a registration statement
has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason, or (C) if the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration
are not satisfied, other than as a result of the voluntary termination
of such offering by the Requisite Holders;
(ii) The Company shall not be required to effect a registration
pursuant to this Section 2.1 unless such registration has been requested
by the holders of Registrable Securities which (A) represent at least
35% (by number of shares) of the Registrable Securities then
outstanding, and (B) have an estimated aggregate offering price to the
public of at least $3,000,000; and
(iii) The Company shall not be required to effect a registration
pursuant to this Section 2.1 during the 180 day period after a
registration statement shall have been filed and declared effective
under the Securities Act with respect to the public offering of any
class of the Company's equity securities (which shall exclude a
registration of securities with respect to an employee benefit,
retirement or similar plan).
(f) Selection of Underwriters. If a requested registration
pursuant to this Section 2.1 involves an underwritten offering, the underwriter
or underwriters thereof shall be selected by the Company with the approval of
the Requisite Holders.
(g) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2.1 involves an underwritten offering,
and the managing underwriter shall advise the Company in writing (with a copy
to each holder of Registrable Securities requesting registration) that, in its
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering within a price range
acceptable to the Requisite Holders, the Company will include in such
registration to the extent of the number which the Company is so advised can be
sold in such offering, Registrable Securities requested to be included in such
registration, pro rata among the holders thereof requesting such registration
on the basis of the percentage of the Registrable Securities of the Company
held by the holders of Registrable Securities which have requested that such
Securities be included. In connection with any registration as to which the
provisions of this clause (g) apply, no securities other than Registrable
Securities shall be covered by such registration.
2.2. Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register any of its securities under the Securities Act
(other than (i) in connection with a registration of any employee benefit,
retirement or similar plan, or (ii) with respect to a Rule 145 transaction, or
(iii) pursuant to Section 2.1), whether or not for sale for its own account, it
will
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each such time give prompt written notice to all holders of Registrable
Securities of its intention to do so and of such holders' rights under this
Section 2.2. Upon the written request of any such holder made within 30 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder and the
intended method of disposition thereof), the Company will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the holders
thereof, to the extent requisite to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so to
be registered, provided that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of any holder
or holders of Registrable Securities entitled to do so to request that such
registration be effected as a registration under Section 2.1, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section
2.2 shall be deemed to have been effected pursuant to Section 2.1 or shall
relieve the Company of its obligation to effect any registration upon request
under Section 2.1. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.2 and any Selling Expenses shall be allocated among all
Persons on whose behalf securities of the Company are included in such
registration, on the basis of the respective amounts of the securities then
being registered on their behalf.
(b) Priority in Incidental Registrations. If (i) a
registration pursuant to this Section 2.2 involves an underwritten offering of
the securities so being registered, whether or not for sale for the account of
the Company, to be distributed (on a firm commitment basis) by or through one
or more underwriters of recognized standing under underwriting terms
appropriate for such a transaction, and (ii) the managing underwriter of such
underwritten offering shall inform the Company and the holders of the
Registrable Securities requesting such registration by letter of its belief
that the number of securities requested to be included in such registration
exceeds the number which can be sold in (or during the time of) such offering,
then the Company will include in such registration, to the extent of the number
which the Company is so advised can be sold in (or during the time of) such
offering, first, all securities proposed by the Company to be sold for its own
account, second, such Registrable Securities requested to be included in such
registration pro rata on the basis of the number of shares of such securities
so proposed to be sold and so requested to be included, and third, all other
securities of the Company requested to be included in such registration pro
rata on the basis of the number of shares of such securities so proposed to be
sold and so requested to be included.
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2.3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1 and 2.2, the
Company will as expeditiously as possible:
(i) prepare and (as soon thereafter as possible or in any event
no later than 60 days after the end of the period within which requests
for registration may be given to the Company) file with the Commission
the requisite registration statement to effect such registration and
thereafter use its best efforts to cause such registration statement to
become effective, provided that the Company may discontinue any
registration of its securities which are not Registrable Securities
(and, under the circumstances specified in Section 2.2(a), its
securities which are Registrable Securities) at any time prior to the
effective date of the registration statement relating thereto;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have
been disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of Registrable Securities covered
by such registration statement such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents,
as such seller may reasonably request;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as
each seller thereof shall reasonably request, to keep such registration
or qualification in effect for so long as such registration statement
remains in effect, and take any other action which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of
such Registrable Securities;
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(vi) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller (and underwriters, if any) of:
(A) an opinion of counsel for the Company, dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to such seller, and
(B) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under
the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of the accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities and, in
the case of the accountants' letter, such other financial matters, and,
in the case of the legal opinion, such other legal matters, as such
seller may reasonably request;
(vii) notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of which,
the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any such
seller promptly prepare and furnish to such seller a reasonable number
of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar month after
the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act, and will furnish to each such seller at least five
business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall not
file any thereof to
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which any such seller shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects
with the requirements of the Securities Act or of the rules or
regulations thereunder;
(ix) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of
such registration statement;
(x) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on
which any of the Registrable Securities is then listed; and
(xi) enter into such agreements and take such other actions as
the Requisite Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company
may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in the subdivision (vii) of this
Section 2.3, such holder will forthwith discontinue such holder's disposition
of Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to each such holder and the
underwriters and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 2.7. The holders of Registrable Securities to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting
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agreement be conditions precedent to the obligations of such holders of
Registrable Securities. Any such holder of Registrable Securities shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation required
by law.
(b) Incidental Underwritten Offerings. If the Company at any
time proposes to register any of its securities under the Securities Act as
contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities as provided in Section 2.2 and subject to the
provisions of Section 2.2(b), arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters. The holders of Registrable
Securities to be distributed by such underwriters shall be parties to the
underwriting agreement between the Company and such underwriters and may, at
their option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be required to
made any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
2.5. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the holders of
Registrable Securities registered under such registration statement, and their
counsel and accountants, the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent
public accountants who have certified its financial statements as shall be
necessary, in the opinion of such holders' counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
2.6. Additional Rights of Owners. If any registration
statement prepared under this Agreement refers to any Owner by name or
otherwise as the holder of any securities of the Company, then such Owner shall
have the right to require (x) the insertion therein of language, in form and
substance satisfactory to such Owner, to the effect that the holding by such
Owner of such securities does not necessarily make such Owner a "controlling
person" of the Company within the meaning of the Securities Act and is not to
be construed as a recommendation by such Owner of the investment quality of the
Company's debt or equity securities covered thereby and that such holding does
not imply that such Owner will assist in meeting any future financial
requirements of the Company, or (y) in the event that such reference to such
Owner by name or
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otherwise is not required by the Securities Act or any rules and regulations
promulgated thereunder, the deletion of the reference to such Owner.
2.7. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, in the case of any registration statement filed
pursuant to Section 2.1 or 2.2, indemnify and hold harmless the seller of any
Registrable Securities covered by such registration statement, its directors
and officers, each other Person who participates in the offering or sale of
such securities and each other Person, if any, who controls such seller within
the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which such seller or any such director or
officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse such seller
and each such director, officer, and controlling person for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) 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,
any such preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such seller specifically stating that it is for use in the preparation thereof
and, provided further that the Company shall not be liable to any Person who
participates as an underwriter, in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within
the meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, underwriter or controlling person and shall
survive the transfer of such securities by such seller.
(b) Indemnification by the Sellers. The Company may require,
as a condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.3, that the Company shall have received
an undertaking satisfactory to it from the prospective seller
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of such securities, to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Section 2.7) the
Company, each director of the Company, each officer of the Company and each
other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly
executed by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling Person and
shall survive the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.7, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding subdivisions of this Section 2.7, except to
the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, the indemnifying party shall be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, 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.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
(e) Indemnification Payments. The indemnification required by
this Section 2.7 shall be made by periodic payments of the amount thereof
during the course of the
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investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
2.8. Adjustments Affecting Registrable Securities. The Company
will not effect or permit to occur any combination or subdivision of
Registrable Securities which would adversely affect the ability of the holders
of Registrable Securities to include such Registrable Securities in any
registration of its securities contemplated by this Section 2, or the
marketability of such Registrable Securities under any such registration.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this
Agreement. For purposes of this Agreement, all references to the
Company shall be deemed to include any successor entity or
transferee.
Exchange Act: The Securities Exchange Act of 1934, 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. Reference to a particular section of the Securities
Exchange Act of 1934 shall include a reference to the comparable
section, if any, of any such similar Federal statute.
Initial Registration Date: The first to occur of (i) June 30,
1997, and (ii) the 180th day after a registration statement shall
have been filed and declared effective under the Securities Act
with respect to the initial public offering of the Company's
securities.
Majority Holders: At any time, the holder or holders of more
than 50% (by number of shares) of all Registrable Securities then
outstanding.
Person: A corporation, an association, a partnership, a
business, an individual, a governmental or political subdivision
thereof or a governmental agency.
Registrable Securities: any Company Common Stock owned by an
Owner and any securities issued or issuable with respect to any
such Company Common Stock by way of distribution or in connection
with any reorganization, recapitalization, merger, consolidation
or otherwise. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of
such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance
with such registration statement, (b) they shall have been
distributed
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to the public pursuant to Rule 144 or Rule 144A (or any successor
provision) under the Securities Act, (c) they shall have been
otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by
the Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or
any similar state law then in force, or (d) they shall have
ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Section 2.1, including, without
limitation, all registration, filing and National Association of
Securities Dealers fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such
performance and compliance, the fees and disbursements incurred
by the holders of Registrable Securities to be registered
(including the fees and disbursements of not more than one
special counsel to the holders of such Registrable Securities),
premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable
Securities being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of
securities, but excluding Selling Expenses, if any, provided
that, in any case where Registration Expenses are not to be borne
by the Company, such expenses shall not include salaries of
Company personnel or general overhead expenses of the Company,
auditing fees, premiums or other expenses relating to liability
insurance required by underwriters of the Company or other
expenses for the preparation of financial statements or other
data normally prepared by the Company in the ordinary course of
its business or which the Company would have incurred in any
event.
Requisite Holders: With respect to any registration of
Registrable Securities pursuant to Section 2.1, any holder or
holders of more than 50% (by number of shares) of the Registrable
Securities to be so registered.
Securities Act: The Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as of the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933
shall include a reference to the comparable section, if any, of
any such similar Federal Statute.
Selling Expenses: underwriting discounts and commissions and
stock transfer taxes relating to securities registered by the
Company.
4. Rule 144 and Rule 144A: If the Company shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration
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statement pursuant to the requirements of the Securities Act, the Company will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission thereunder
(or, if the Company is not required to file such reports, will, upon the
request of any holder of Registrable Securities, make publicly available other
information) and will take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time or
(b) any similar rule or regulation hereafter adopted by the Commission. Upon
the request of any holder of Registrable Securities, the Company will deliver
to such holder a written statement as to whether it has complied with such
requirements. After any sale of Registrable Securities pursuant to this
Section 4, the Company will, to the extent allowed by law, cause any
restrictive legends to be removed and any transfer restrictions to be rescinded
with respect to such Registrable Securities. In order to permit the holders
of Registrable Securities to sell the same, if they so desire, pursuant to Rule
144A promulgated by the Commission (or any successor to such rule), the Company
will comply with all rules and regulations of the Commission applicable in
connection with use of Rule 144A (or any successor thereto). Prospective
transferees of Registrable Securities that are Qualified Institutional Buyers
(as defined in Rule 144A) which would be purchasing such Registrable Securities
in reliance upon Rule 144A may request from the Company information regarding
the business, operations and assets of the Company. Within five business days
of any such request, the Company shall deliver to any such prospective
transferee copies of annual audited and quarterly unaudited financial
statements of the Company and such other information as may be required to be
supplied by the Company for it to comply with Rule 144A.
5. Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the
Majority Holders; provided, however, that no amendment to this Agreement that
would adversely affect the rights of a party hereto may be made without the
prior written consent of such party, with the exception that temporary waivers
and suspensions of the rights of all of the Owners pursuant to customary terms
at the request of the managing underwriter in connection with any underwritten
offering of the Company's securities, may be authorized by consent of the
Majority Holders. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this Section
5, whether or not such Registrable Securities shall have been marked to
indicate such consent.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the
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beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
7. Notices. All communications provided for hereunder shall
be sent by first-class mail and (a) if addressed to a party other than the
Company, addressed to such party at the address set forth opposite such parties
name on the execution page hereof, or (b) if addressed to the Company, at 000
Xxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 or at such other address, or to the
attention of such other officer, as the Company shall have furnished to each
holder of Registrable Securities at the time outstanding; provided, however,
that any such communication to the Company may also, at the option of any of
the parties hereunder, be either delivered to the Company at its address set
forth above or to any officer of the Company.
8. Assignment. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be
entitled to certain rights, or take certain actions, contained herein.
9. Termination. This Agreement shall terminate when no
Registrable Securities remain outstanding.
10. Termination of Original Agreement. The parties hereto, as
applicable, who are parties to the Original Agreement, agree that the Original
Agreement is hereby terminated and of no further force or effect.
11. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
12. Specific Performance. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
13. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of Texas.
14. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
COMPANY:
TITAN EXPLORATION, INC.
By: /s/ XXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
OWNERS:
NATURAL GAS PARTNERS, L.P.
By: G.F.W. Energy, L.P.,
General Partner
By: /s/ XXXXX X. XXXXX
--------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------
Title: Authorized Employee
-----------------------------------
NATURAL GAS PARTNERS II, L.P.
By: G.F.W. Energy II, L.P.,
General Partner
By: GFW II, L.L.C.,
General Partner
By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Authorized Member
-----------------------------------
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/s/ XXXX X. XXXXXXXXX
-----------------------------------------
XXXX X. XXXXXXXXX
JOINT ENERGY DEVELOPMENT
INVESTMENTS LIMITED PARTNERSHIP
By: Enron Capital Management Limited
Partnership, its general partner
By: Enron Capital Corp., its general
partner
By: /s/ XXXXX XXXXXX, XX.
--------------------------------------
Name: Xxxxx Xxxxxx, Xx.
------------------------------------
Title: Agent of Attorney in Fact
-----------------------------------
FIRST UNION CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
SELMA INTERNATIONAL INVESTMENT LIMITED
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
