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EXHIBIT 99.5
CARRIZO OIL & GAS, INC.,
a Texas corporation
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
December 15, 1999
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TABLE OF CONTENTS
Page
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1. Certain Definitions..............................................1
2. [Intentionally omitted] .........................................3
3. [Intentionally omitted] .........................................3
4. [Intentionally omitted] .........................................3
5. Registration Rights..............................................3
5.1 Requested Registration..................................3
5.2 Company Registration....................................5
5.3 Registration on Form S-3................................6
5.4 Chase Agreement.........................................9
5.5 Limitations on Subsequent Registration Rights...........9
5.6 Expenses of Registration...............................10
5.7 Registration Procedures................................10
5.8 Indemnification........................................12
5.9 Certain Agreements of Holders..........................14
5.10 Rule 144 Reporting.....................................16
5.11 Transfer of Registration Rights........................16
5.12 Lockup Agreement.......................................16
5.13 Termination of Registration Rights.....................17
6. Miscellaneous...................................................17
6.1 GOVERNING LAW..........................................17
6.2 Successors and Assigns.................................17
6.3 Effectiveness..........................................17
6.4 Entire Agreement; Amendment............................17
6.5 Notices, Etc...........................................17
6.6 Delays or Omissions....................................18
6.7 Severability...........................................18
6.8 Titles and Subtitles...................................18
6.9 Gender.................................................18
6.10 Counterparts...........................................18
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is entered into
as of the 15th day of December, 1999 by and among Carrizo Oil & Gas, Inc., a
Texas corporation (the "Company"), and certain shareholders of the company whose
names are set forth on Annex A attached hereto (the "Purchasers") and amends and
restates the Registration Rights Agreement dated as of June 4, 1997.
Recitals
The Company is entering into a Registration Rights Agreement
dated December 15, 1999 with, among others, CB Capital Investors, L.P. The
Company now wishes to amend this Agreement in accordance with the Chase
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Chase Agreement" means the Registration Rights Agreement dated as of
December 15, 1999 among the Company and the Shareholders of the Company listed
on Annex A attached thereto.
"Chase Holders" means the Purchasers under the Chase Agreement and any
Persons to whom Registrable Securities are transferred in accordance with the
Chase Agreement.
"Chase Registration Notice" has the meaning given to such term in
Section 5.4.
"Combined Registrable Securities" has the meaning given to such term in
Section 5.4.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock of the Company, par value
$.01 per share, and any other securities issued in respect of Common Stock upon
any stock split, stock dividend, recapitalization, merger, consolidation, share
exchange or similar event.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
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"Holder" shall mean any Purchaser holding Registrable Securities and
any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 5.11 hereof.
"Holder Registration Notice" has the meaning given to such term in
Section 5.4.
"Initiating Holders" shall mean any Holder(s) who in the aggregate are
Holders of not less than 51% of the then outstanding Registrable Securities.
"Purchased Shares" shall mean the Common Stock purchased by the
Purchasers pursuant to the Purchase Authorizations.
"Person" means any individual, any foreign or domestic corporation,
general partnership, limited partnership, limited liability company, firm, joint
venture, association, individual retirement account, joint stock company, trust,
estate, unincorporated organization, governmental or regulatory body or other
entity.
"Registrable Securities" shall mean (i) the shares of Common Stock of
the Company held by the Purchasers on the date hereof and (ii) all shares of
Common Stock of the Company issuable upon the conversion, exchange or exercise
of all securities of the Company that are convertible, exchangeable or
exercisable for Common Stock hereafter acquired (including without limitation,
any Common Stock issued to the Purchasers pursuant to the exercise of the
Warrants); provided, however, that securities shall be treated as Registrable
Securities only if and only for so long as they are held by a Holder or a
permitted transferee pursuant to the terms hereof, and (i) they have not been
disposed of pursuant to a registration statement declared effective by the
Commission, so that all transfer restrictions and restrictive legends with
respect thereto are removed upon the consummation of such sale, or (ii) they
have not been sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act, so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the consummation
of such sale, or (iii) the registration rights as to the Holder of such
Registrable Securities have not expired pursuant to Section 5.13.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, other than Selling
Expenses (as defined below), incurred by the Company in complying with Section
5.1, 5.2 or 5.3 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of one counsel for all Holders.
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"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all fees and disbursements of
counsel for any Holder.
"Warrants" has the meaning given to such term in the Warrant Agreement.
"Warrant Agreement" shall mean the Warrant Agreement dated as of the
date hereof among the Company and the parties named therein.
2. [Intentionally omitted]
3. [Intentionally omitted]
4. [Intentionally omitted]
5. Registration Rights.
5.1 Requested Registration.
(a) Request for Registration. In case the Company shall receive
from Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to not less than 5% of
the shares of Registrable Securities then outstanding, the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its reasonable best lawful
efforts to effect such registration, qualification or compliance (including,
without limitation, appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable regulations
issued under the Securities Act and any other governmental requirements or
regulations) as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any Holders joining in such request as are specified in a written
request received by the Company within 20 days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to take any action to effect any such registration, qualification or
compliance pursuant to this Section 5.1:
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(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and ending on the date
three (3) months immediately following the effective date of, a
Company-initiated registration statement pertaining to securities of the Company
(other than a registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan), provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective (and provided, further, that the Company cannot
pursuant to this Section 5.1(a)(ii)(B) or pursuant to Section 5.3(a)(ii)(B)
delay implementation of a demand for registration more than once in any 24-month
period);
(C) After the Company has effected an aggregate of four
such registrations which may be effected at the option of the Holders pursuant
to either this Section 5.1(a) or Section 5.3(a), and such registrations have
been declared or ordered effective; or
(D) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its reasonable best lawful
efforts to register, qualify or comply under this Section 5.1 shall be deferred
once (with respect to any demand for registration hereunder) for a period not to
exceed ninety (90) days from the date of receipt of written request from the
Initiating Holders, provided that the Company cannot pursuant to this Section
5.1(a)(ii)(D) or pursuant to Section 5.3(a)(ii)(D) delay implementation of a
demand for registration more than once in any 12-month period.
Subject to the foregoing clauses (A) through (D), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, after receipt of the request or
requests of the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
Section 5.1 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 5.1(a)(i). In such event, the right of any Holder to registration
pursuant to Section 5.1 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 5.1, and the inclusion of
such Holder's Registrable Securities, as the case may be, in the underwriting to
the extent requested shall be limited to the extent provided herein.
The Company shall (together with all Holders and other holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by a majority in interest of the Initiating
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Holders, but subject to the Company's reasonable approval. Notwithstanding any
other provision of this Section 5.1, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the underwriter may limit the Registrable Securities to be
included in such registration and underwriting (provided that securities of
other securityholders are not included therein). In the event of a limitation on
the number of Registrable Securities to be included in a registration, then the
Company shall so advise all Holders and the number of Registrable Securities
that may be included in the registration and underwriting shall be allocated
among all Holders thereof in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders. No
Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. To
facilitate the allocation of Registrable Securities in accordance with the above
provisions, the Company or the underwriters may round the number of Registrable
Securities allocated to any Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such Person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities so withdrawn shall also be withdrawn from registration,
and such Registrable Securities shall not be transferred in a public
distribution prior to 180 days after the effective date of such registration, or
such other shorter period of time as the underwriters may require.
(c) The Company shall not register securities for sale for its
own account in any registration requested pursuant to this Section 5.1 unless
permitted to do so by the written consent of Holders who hold at least 2/3 of
the Registrable Securities as to which registration has been requested or unless
the underwriter shall indicate in writing to the Initiating Holders that the
inclusion of the shares to be sold for the account of the Company will not
adversely affect the registration, the price of the shares to be sold and the
number of shares to be sold for the account of the Holders. The Company may not
cause any other registration of securities for sale for its own account (other
than a registration effected solely to implement an employee benefit plan or
stock option plan or a transaction contemplated by Rule 145 of the Commission)
to be initiated after a registration requested pursuant to Section 5.1 and to
become effective less than 90 days after the effective date of any registration
requested pursuant to Section 5.1.
5.2 Company Registration.
(a) Notice of Registration. If at any time or from time to time
the Company shall determine to register any of its securities, either for its
own account or the account of a security holder or holders, other than (x) a
registration relating solely to employee benefit plans, or (y) a registration
relating solely to a Commission Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof;
and
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(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt of such written notice from the
Company, by any Holder.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 5.2(a)(i). In such event the right of any Holder to
registration pursuant to Section 5.2 shall be conditioned upon such Holder's
participation in such underwriting, and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 5.2, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriters may exclude some or
all Registrable Securities from such registration and underwriting (provided
that securities of other securityholders are similarly excluded. In the event of
a limitation (or elimination) on the number of Registrable Securities and other
securities to be included in a registration, the Company shall so advise all
Holders and any other holders requesting to distribute their securities through
such underwriting pursuant to piggy-back registration rights and the number of
Registrable Securities and other such securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof and
such other holders in proportion, as nearly as practicable, to the respective
amounts of securities requested to be included in such registration. To
facilitate the allocation of Registrable Securities in accordance with the above
provisions, the Company may round the number of Registrable Securities and other
securities allocated to any Holder or other holder to the nearest 100 shares. If
any Holder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to 180 days after the effective date of the registration
statement relating thereto, or such other shorter period of time as the
underwriters may require.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 5.2 prior to or after the effectiveness of such registration whether or
not any Holder has elected to include securities in such registration.
5.3 Registration on Form S-3.
(a) In addition to the registration rights provided in Sections
5.1 and 5.2, if the Company shall receive from Initiating Holders a written
request that the Company file a registration statement on Form S-3 (or any
successor form to Form S-3) for a public offering of
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shares of the Registrable Securities and the Company is a registrant entitled to
use Form S-3 to register the Registrable Securities for such an offering by
selling Holders the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best lawful efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities and of any Holders joining in such request as are specified in a
written request received by the Company within 20 days after receipt of such
written notice from the Company; provided, however, that the Company shall not
be obligated to take any action to effect any such registration, qualification
or compliance pursuant to this Section 5.3:
(A) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) During the period starting with the date sixty
(60) days prior to the Company's estimated date of filing of, and ending on the
date three (3) months immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective (and provided, further, that the Company cannot pursuant to this
Section 5.3(a)(ii)(B) or pursuant to Section 5.1(a)(ii)(B) delay implementation
of a demand for registration more than once in any 24-month period);
(C) After the Company has effected an aggregate of
four such registrations which may be effected at the option of the Holders
pursuant to either this Section 5.3(a) or Section 5.1(a), and such registrations
have been declared or ordered effective; or
(D) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors it would be seriously detrimental to
the Company or its shareholders for a registration statement to be filed in the
near future, then the Company's obligation to use its reasonable best lawful
efforts to register, qualify or comply under this Section 5.3 shall be deferred
once (with respect to any demand for registration hereunder) for a period not to
exceed ninety (90) days from the date of receipt of written request for
registration; provided, however, that the
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Company cannot pursuant to this Section 5.3(a)(ii)(D) or pursuant to Section
5.1(a)(ii)(D) delay implementation of a demand for registration more than once
in any 12-month period.
Subject to the foregoing clauses (A) through (D), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as reasonably practicable, after receipt of the request
or requests for registration.
(b) Underwriting. In the event that a registration pursuant to
Section 5.3 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 5.3(a)(i). In such event, the right of any Holder to registration
pursuant to Section 5.3 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 5.3, and the inclusion of
such Holder's Registrable Securities, as the case may be, in the underwriting to
the extent requested shall be limited to the extent provided herein.
The Company shall (together with all Holders and other holders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by a majority in interest of the Initiating
Holders, but subject to the Company's reasonable approval. Notwithstanding any
other provision of this Section 5.3, if the managing underwriter determines that
marketing factors require a limitation of the number of Registrable Securities
to be underwritten, the underwriters may limit the Registrable Securities to be
included in such registration and underwriting (provided that securities of
other securityholders are not included therein). In the event of a limitation on
the number of Registrable Securities to be included in a registration, the
Company shall so advise all Holders, and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement. No Registrable Securities excluded
from the underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. To facilitate the allocation of Registrable
Securities in accordance with the above provisions, the Company or the
underwriters may round the number of Registrable Securities allocated to any
Holder to the nearest 100 shares.
If any Holder disapproves of the terms of the underwriting, such Person
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Initiating Holders. The Registrable Securities so withdrawn
shall also be withdrawn from registration, and such securities shall not be
transferred in a public distribution prior to 180 days after the effective date
of such registration, or such other shorter period of time as the underwriters
may require.
(c) The Company shall not register securities for sale for its
own account in any registration requested pursuant to this Section 5.3 unless
permitted to do so by the written consent of Holders who hold at least 2/3 of
the Registrable Securities as to which registration has been requested or unless
the underwriter shall indicate in writing to the Initiating Holders that the
inclusion of the shares to be sold for the account of the Company will not
adversely affect the
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registration, the price of the shares to be sold and the number of shares to be
sold for the account of the Holders. The Company may not cause any other
registration of securities for sale for its own account (other than a
registration effected solely to implement an employee benefit plan or stock
option plan or a transaction contemplated by Rule 145 of the Commission) to be
initiated after a registration requested pursuant to Section 5.3 and to become
effective less than 90 days after the effective date of any registration
requested pursuant to Section 5.3
5.4 Chase Agreement.
If the Company receives notice from the Chase Holders of a request for
registration pursuant to Sections 5.1(a) or 5.3(a) of the Chase Agreement (a
"Chase Registration Notice"), the Company shall promptly notify the Holders
after receipt of the Chase Registration Notice, and the Holders may thereafter
give notice, within 20 days after the date of the Chase Registration Notice, of
a registration request pursuant to Sections 5.1(a) or 5.3(a), as the case may
be, of this Agreement. If the Company receives notice from the Initiating
Holders of a request for registration pursuant to Sections 5.1(a) or 5.3(a) of
this Agreement (a "Holder Registration Notice"), the Company shall promptly
notify the Chase Holders after receipt of the Holder Registration Notice, and
the Chase Holders may thereafter give notice, within 20 days after receipt of
the Holder Registration Notice, of a registration request pursuant to Sections
5.1(a) or 5.3(a), as the case may be, of the Chase Agreement. In either such
event, the Registrable Securities of the Holders requesting registration and of
the Chase Holders requesting registration (collectively, the "Combined
Registrable Securities") (whether or not such Holders or Chase Holders, as the
case may be, initiated such request) shall be included in such registration with
priority over any securities of other securityholders who may be entitled to
exercise piggyback registration rights. The registration shall be governed by
the registration rights agreement to which the Person initiating the request for
registration is a party (e.g., if the request for registration is initiated by
the Chase Holders, the Chase Agreement shall govern and if the request for
registration is initiated by the Holders, this Agreement shall govern) and for
purposes of such registration, the term "Registrable Securities" as used in the
Chase Agreement or this Agreement, as the case may be, shall mean the Combined
Registrable Securities and the term "Holders" as used in the Chase Agreement or
this Agreement, as the case may be, shall include the Holders as defined under
the Chase Agreement and the Holders as defined under this Agreement.
5.5 Limitations on Subsequent Registration Rights.
(a) The Company represents and warrants to the Purchasers that
the registration rights granted to the Purchasers hereby do not conflict with
any other registration rights granted by the Company. The Company shall not,
after the date hereof, grant any registration rights which conflict with or
impair, or have any priority over, the registration rights granted hereby. If
the Company grants to other investors any registration rights which are not
prohibited by the foregoing sentence, such registration rights shall be issued
under registration rights agreements which contain sharing provisions similar to
Section 5.4 above. Without limiting the generality of the foregoing,
registration rights which contain such sharing provisions and which otherwise
contain
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the same provisions as this Agreement shall not be deemed to have priority or
impair the Purchasers' registration rights.
(b) Within the limitations prescribed by this Section 5.5(b),
but not otherwise, the Company may grant to subsequent investors in the Company
registration rights such as those provided in Section 5.2. Such rights may only
pertain to shares of Common Stock, including shares of Common Stock into which
any other securities may be converted. Such rights may be granted with respect
to (i) registrations requested pursuant to Section 5.1 or 5.3, but only in
respect of that portion of any such registration as remains after inclusion of
all Registrable Securities requested by Holders to be included in such
registration and (ii) registrations initiated by the Company, provided that such
rights shall be limited in all cases to sharing pro rata in the available
portion of the registration in question with Holders, such sharing to be based
on the number of shares of Common Stock held by the respective Holders and held
by such other investors, plus the number of shares of Common Stock into which
other securities held by the Holders and such other investors are convertible,
which are entitled to registration rights.
5.6 Expenses of Registration. All Registration Expenses incurred in
connection with the registrations pursuant to Section 5.1, Section 5.2 and
Section 5.3 shall be borne by the Company. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders or other
holders registering securities shall be borne by the Holders or holders of such
securities pro rata on the basis of the number of shares so registered.
5.7 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best lawful efforts to
cause such registration statement to become and remain effective for a period of
one hundred twenty (120) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; provided, however, that (i) such 120-day period shall be extended
for a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of the Company; and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such 120-day period shall be extended,
if necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 415, or any successor rule
under the Securities Act, permits an offering on a continuous or delayed basis,
and provided further that applicable rules under the Securities Act governing
the obligation to file a post-effective amendment permit, in lieu of filing a
post-effective amendment that (I) includes any prospectus required by Section
10(a)(3) of the Securities Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be included
in (I) and (II) above
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to be contained in periodic reports filed pursuant to Section 13 or 15(d) of the
Exchange Act in the registration statement;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a Holder from time to time may reasonably request;
(d) 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 of 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 a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, 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 shares, 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 or
incomplete in the light of the circumstances then existing;
(e) Cause all such Registrable Securities registered pursuant
hereto to be listed on each securities exchange or quoted on a quotation system
on which similar securities issued by the Company are then listed or quoted;
(f) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(g) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securities holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first month after the effective date of the Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act; and
(h) If requested by Holders of 50% of all of the Registrable
Securities that are being registered in such registration, furnish to each
prospective seller a signed counterpart, a "comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included in the registration statement, covering substantially the
same matters with respect to the registration statement (and the prospectus
included therein) and with respect to
-11-
14
events subsequent to the date of the financial statements, as are customarily
covered (at the time of such registration and closing) in "comfort" letters
delivered to the underwriters in underwritten public offerings of securities.
5.8 Indemnification.
(a) To the extent permitted by law, the Company will indemnify
each Holder, each of its officers and directors, partners and legal counsel and
each Person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each Person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions or proceedings in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, prospectus, offering circular or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, not misleading, or any violation by
the Company of the Securities Act or any rule or regulation promulgated under
the Securities Act applicable to the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, each of its officers and directors, partners and legal counsel and
each Person controlling such Holder, each such underwriter and each Person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing, settling or defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by such Holder,
controlling Person or underwriter and stated to be specifically for use therein.
Notwithstanding the foregoing, insofar as the foregoing indemnity relates to any
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Commission, the indemnity agreement herein shall
not inure to the benefit of any underwriter if a copy of the final prospectus
filed pursuant to Rule 424(b) was not furnished to the Person or entity
asserting the loss, liability, claim or damage at or prior to the time such
furnishing is required by the Securities Act.
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
indemnify the Company, each of its directors, officers and legal counsel, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each Person who controls the Company or such underwriter within the
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meaning of Section 15 of the Securities Act, and each other such Holder, each of
its officers and directors and each Person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, 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 will reimburse the Company, such Holders, such directors,
officers, legal counsel, Persons, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use therein. Notwithstanding the foregoing,
the liability of each Holder under this subsection (b) shall be limited in an
amount equal to the net proceeds from the sale of the Registrable Securities
sold by such Holder. In addition, insofar as the foregoing indemnity relates to
any such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the final prospectus filed pursuant to Rule
424(b) of the Commission, the indemnity agreement herein shall not inure to the
benefit of the Company, any underwriter or (if there is no underwriter) any
Holder if a copy of the final prospectus filed pursuant to Rule 424(b) was not
furnished to the Person or entity asserting the loss, liability, claim or damage
at or prior to the time such furnishing is required by the Securities Act.
(c) Each party entitled to indemnification under this Section
5.8 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party shall not
assume the defense for matters as to which there is a conflict of interest or
separate and different defenses. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. No Indemnified Party shall consent to entry of any
judgment or enter into any settlement without the consent of each Indemnifying
Party (which consent shall not be unreasonably withheld). Each Indemnified Party
shall furnish such information regarding itself or
-13-
16
the claim in question as an Indemnifying Party may reasonably request in writing
and as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) If the indemnification provided for in this Section 5.8 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any losses, claims, damages, expenses or liabilities
referred to therein, then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, expenses or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and all shareholders offering securities in the
offering (the "Selling Shareholders") on the other in connection with the
statements or omissions which resulted in such losses, claims, damages, expenses
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Selling Shareholders on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Selling Shareholders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Selling Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 5.8(d) were based
solely upon the number of entities from whom contribution was requested or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 5.8(d). The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages,
expenses and liabilities referred to above in this Section 5.8(d) shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim, subject to the provisions of Section 5.8(c) hereof. Notwithstanding
the provisions of this Section 5.8(d), no Selling Shareholder shall be required
to contribute any amount or make any other payments under this Agreement which
in the aggregate exceed the proceeds received by such Selling Shareholder. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
5.9 Certain Agreements of Holders.
(a) The Holder(s) included in any registration shall furnish to
the Company such information regarding such Holder(s), the Registrable
Securities and the distribution proposed by such Holder(s), as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in Section 5.
-14-
17
(b) The failure of any Holder(s) to be included in a
registration to furnish the information requested pursuant to Section 5.9(a)
shall not affect the obligation of the Company under Section 5 to the remaining
Holder(s) who furnish such information unless, in the reasonable opinion of
counsel to the Company or the underwriters, such failure impairs or may impair
the legality of the registration statement or the underlying offering.
(c) Each Holder agrees that, upon receipt of any notice from
the Company of the happening of any event requiring the preparation of a
supplement or amendment to a prospectus relating to Registrable Securities so
that, as thereafter delivered to such Holder, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, each Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statements contemplated by this
Agreement until its receipt of copies of the supplemented or amended prospectus
from the Company and, if so directed by the Company, each Holder shall deliver
to the Company all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities that
is current at the time of receipt of such notice.
(d) Each Holder agrees to notify the Company, at any time when
a prospectus relating to the registration statement contemplated by this
Agreement is required to be delivered by it under the Act, of the occurrence of
any event relating to such Holder which requires the preparation of a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading
relating to such Holder, and such Holder shall promptly make available to the
Company information necessary to enable the Company to prepare any such
supplement or amendment. Each Holder agrees not to take any action with respect
to any distribution deemed to be made pursuant to such registration statement
that constitutes a violation of Rule 10(b)6 under the Exchange Act or any other
applicable rule, regulation or law.
(c) Each Holder acknowledges and agrees that in the event of
sales under a shelf registration statement pursuant to this Agreement, (1) the
Registrable Securities sold pursuant to such registration statement are not
transferable on the books of the Company unless the share certificate submitted
to the transfer agent evidencing such Registrable Securities is accompanied by a
certificate reasonably satisfactory to the Company to the effect that (A) the
Registrable Securities have been sold in accordance with such registration
statement and (B) the requirement of delivering a current prospectus has been
satisfied and (2) such Holder will not effect any public sale or distribution of
Registrable Securities pursuant to such shelf registration statement pursuant to
this Agreement at any time that the Company shall have advised the Holders in
writing that the sale by such Holders pursuant to such shelf registration could
reasonably be expected to adversely affect, or require the premature disclosure
of any proposed acquisition, disposition or other transaction involving the
Company; provided, however, the Company may not restrict any such sales unless
at
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least five (5) days' prior written notice is provided to each Holder and
provided further the Company may not restrict sales by Holders for a total of
more than 60 (sixty) days during any one year period.
5.10 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best lawful efforts to:
(a) Make and keep public information regarding the Company
available, as those terms are understood and defined in Rule 144 under the
Securities Act, at all times from and after 90 days following the effective date
of the first registration under the Securities Act filed by the Company for an
offering of its securities to the general public.
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements);
(c) So long as a Holder owns any Restricted Securities, furnish
to such Holder forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 (at any time
from and after 90 days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company and other information in the possession of or reasonably
obtainable by the Company as a Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing such Holder to sell any
such securities without registration.
5.11 Transfer of Registration Rights. The rights granted to a Holder
under Section 5 may be assigned to a transferee or assignee in connection with
any transfer or assignment of Registrable Securities by a Holder provided that:
(i) such transfer may otherwise be effected in accordance with applicable
securities laws, (ii) such assignee or transferee acquires at least the lesser
of (a) one-half of the number of Registrable Securities originally held by the
Holder that owned such Registrable Securities on the date hereof and (b)
Registrable Securities consisting of 150,000 (subject to appropriate adjustment
for any other stock splits, dividends, subdivisions, combinations,
recapitalizations and the like) and (iii) the Holder notifies the Company in
writing of the transfer or assignment, stating the name and the address of the
transferee or assignee and identifying the securities with respect to which such
registration rights are being transferred or assigned and the assignee or
transferee agrees in writing to be bound by the provisions of this Agreement.
5.12 Lockup Agreement. In consideration for the Company's agreeing to
its obligations under this Agreement, each Holder hereby agrees in connection
with any registration of the Company's securities other than (x) a registration
relating solely to employee benefit plans, or
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19
(y) a registration relating solely to a transaction contemplated by Rule 145 of
the Commission (whether or not the Holder's Registrable Securities are included
in a registration statement pursuant thereto, not to sell, make any short sale
of, loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than those included in the registration) other
than intra-family transfers and transfer to trusts for estate planning purposes
without the prior written consent of the Company or underwriters managing the
offering, as the case may be, during the 90-day period beginning on the
effective date of a registration statement filed pursuant hereto; provided,
however, that such Holder shall be relieved of its obligations under this
Section 5.12 unless all executive officers and directors of the Company enter
into similar agreements. Each Holder hereby agrees that, upon the request of the
Company or the underwriters, it will confirm in writing the provisions of this
Section 5.12. The Company may impose stock-transfer instructions with respect to
securities subject to the foregoing restriction until the end of said
restriction.
5.13 Termination of Registration Rights. The registration
rights granted pursuant to this Agreement shall terminate as to any Holder at
such time as such Holder may sell under Rule 144 all Registrable Securities then
held by such Holder.
6. Miscellaneous.
6.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL
RESPECTS BY THE INTERNAL LAWS OF THE STATE OF TEXAS.
6.2 Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
6.3 Effectiveness. This Agreement shall become effective upon
its execution by each Purchaser.
6.4 Entire Agreement; Amendment. This Agreement constitutes
the full and entire understanding and agreement between the parties with regard
to the subject hereof. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by the party against whom enforcement
of any such amendment, waiver, discharge or termination is sought; provided
further, however, that any provisions hereof may be amended, waived, discharged
or terminated upon the written consent of the Company and the holders of a
majority in interest of the aggregate of the then outstanding Registrable
Securities.
6.5 Notices, Etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be mailed by
registered or certified mail, postage prepaid, or otherwise delivered by hand or
by messenger, including Federal Express or similar courier service, or by
facsimile transmission addressed (a) if to a Purchaser, at such Purchaser's
address and/or telefax number set forth in Annex A attached hereto, or at such
other address as such Purchaser shall
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20
have furnished to the Company in writing, or (b) if to the Company, to Carrizo
Oil & Gas, Inc., ▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn:
President; telefax number (▇▇▇) ▇▇▇-▇▇▇▇, or at such other address as the
Company shall have furnished to the Holders.
Each such notice or other communication shall for all purposes
of this Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or five
days after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and mailed as aforesaid, or, if
sent by courier, on the next business day following the day of dispatch or sent
by facsimile transmission, on the date of such transmission if confirmation of
such transmission is received.
6.6 Delays or Omissions. Except as expressly provided herein,
no delay or omission to exercise any right, power or remedy accruing to any
party upon any breach or default of another party the Company under this
Agreement shall impair any such right, power or remedy of such party that is not
in breach or default nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
6.7 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
6.8 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not considered in
construing or interpreting this Agreement.
6.9 Gender. As used herein, masculine pronouns shall include
the feminine and neuter, neuter pronouns shall include the masculine and the
feminine.
6.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall constitute
one instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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21
IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have executed this agreement effective
upon the date first set forth above.
"COMPANY"
CARRIZO OIL & GAS, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇ ▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇ ▇▇
--------------------------------
Title: President
--------------------------------
"PURCHASERS"
/s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇. ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------------------
▇. ▇. ▇▇▇▇▇▇▇ ▇▇
DAPHAM PARTNERSHIP L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
General Partner
22
ANNEX A
PURCHASERS
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
DAPHAM Partnership L.P.
▇▇▇▇▇ ▇▇. ▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇