EXHIBIT 10.7
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF AUGUST 2, 2001
BY AND AMONG
INLAND HOLDINGS LLC,
INLAND RESOURCES INC.,
AND
HAMPTON INVESTMENTS LLC
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS..................................................1
SECTION 2. DEMAND REGISTRATION RIGHTS...................................2
SECTION 3. SHELF REGISTRATION...........................................4
SECTION 4. PIGGY-BACK REGISTRATION......................................4
SECTION 5. RESTRICTIONS ON DISPOSITIONS AND DEMAND REGISTRATIONS........5
SECTION 6. REGISTRATION PROCEDURES......................................6
SECTION 7. REGISTRATION EXPENSES.......................................10
SECTION 8. INDEMNIFICATION; CONTRIBUTION...............................10
SECTION 9. RULE 144....................................................12
SECTION 10. REMEDIES................................................... 12
SECTION 11. BINDING EFFECT; TRANSFEREES; TERMINATION....................13
SECTION 12. AMENDMENTS AND WAIVERS......................................13
SECTION 13. NOTICES.....................................................13
SECTION 14. ENTIRE AGREEMENT............................................14
SECTION 15. COUNTERPARTS................................................14
SECTION 16. HEADINGS ...................................................14
SECTION 17. GOVERNING LAW...............................................14
SECTION 18. SEVERABILITY................................................14
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
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This Amended and Restated Registration Rights Agreement (the
"AGREEMENT") is made and entered into as of the __ day of August, 2001, by and
among Inland Resources Inc., a Washington corporation (the "Company"), Inland
Holdings, LLC, a California limited liability company ("HOLDINGS") and Hampton
Investments LLC, a Delaware limited liability company ("▇▇▇▇▇").
WITNESSETH
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WHEREAS, the Company, Holdings, TCW Portfolio No. 1555 DRV
Sub-Custody Partnership, L.P., a California limited partnership ("PORTFOLIO"),
Joint Energy Development Investments II Limited Partnership, a Delaware limited
partnership, Pengo Securities Corporation ("PENGO"), ▇▇▇▇▇ Energy Partnership
("SEP"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively, the "▇▇▇▇▇ INDIVIDUALS") (▇▇▇▇▇,
Pengo, SEP and the ▇▇▇▇▇ Individuals, together with any of their respective
affiliates, the "▇▇▇▇▇ GROUP") entered into that certain Registration Rights
Agreement dated September 21, 1999 (the "ORIGINAL AGREEMENT");
WHEREAS, ▇▇▇▇▇ has acquired from the other members of the
▇▇▇▇▇ Group the Registrable Common Stock (as defined in the Original Agreement)
and is concurrently herewith acquiring from Holdings 1,455,390 shares of the
Registrable Common Stock held by Holdings;
WHEREAS, Portfolio no longer holds any options or warrants to
acquire Registrable Common Stock and none of the ▇▇▇▇▇ Group (other than ▇▇▇▇▇)
holds any Registrable Common Stock any longer; and
WHEREAS, the parties hereto desire to amend and restate the
Original Agreement in its entirety as provided herein.
The parties hereby agree that the Original Agreement is
amended and restated in its entirety as follows:
Section 1. DEFINITIONS. As used in this Agreement, the
following terms have the meanings indicated:
"BOARD OF DIRECTORS" means the board of directors of the
Company.
"COMMISSION" means the Securities and Exchange Commission or
any similar agency having jurisdiction to enforce the Securities Act.
"COMMON STOCK" means the common stock, par value $.001 per
share, of the Company.
"DEMAND REGISTRATION" has the meaning ascribed to such term in
SECTION 2(A).
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or governmental or political subdivision,
agency or instrumentality thereof or other entity or organization of any kind.
"PIGGY-BACK REGISTRATION" has the meaning ascribed to such
term in SECTION 4.
"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
effectiveness of such registration statement.
"REGISTRABLE COMMON STOCK" means, collectively, (a) the shares
of Common Stock held by Holdings as of the date hereof, (b) the shares of Common
Stock held by ▇▇▇▇▇ as of the date hereof and (c) any shares of Common Stock or
other securities issued with respect to the Common Stock described in clauses
(a) and (b) of this definition whether by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation, share exchange, reorganization or otherwise held by Holdings or
▇▇▇▇▇; provided, however, such Common Stock or other securities shall cease to
be Registrable Common Stock when (i) a registration statement with respect to
the disposition of such Common Stock or other securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with the plan of distribution set forth in such registration
statement, (ii) such Common Stock or other securities shall have been sold
pursuant to Rule 144 (or any successor provision) under the Securities Act,
(iii) such Common Stock or other securities shall have ceased to be outstanding
or (iv) all of such Common Stock or other securities held by a Person may be
sold pursuant to Rule 144 (or a successor provision) under the Securities Act
without being restricted by the volume limitations or method of sale
restrictions thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SHELF REGISTRATION STATEMENT" has the meaning ascribed to
such term in SECTION 2(A).
Section 2. DEMAND REGISTRATION RIGHTS.
(a) RIGHT TO DEMAND REGISTRATION. Subject to SECTION
2(B), SECTION 2(E) and SECTION 5 hereof, any holder of Registrable Common Stock
may make a written request to the Company for registration with the Commission
under and in accordance with the provisions of the Securities Act of the
disposition of all or part of the Registrable Common Stock (a "DEMAND
REGISTRATION"). Subject to SECTION 2(B), all requests made pursuant to this
SECTION 2(A) will specify the aggregate amount of Registrable Common Stock to be
registered, will specify the intended methods of disposition thereof and will
specify whether the registration statement to be filed is a "shelf" registration
statement ("SHELF REGISTRATION STATEMENT") pursuant to Rule 415 under the
Securities Act (or any similar rule that may be adopted by the Commission). If
any holder intends to dispose of any of the Registrable Common Stock pursuant to
an underwritten offering, the holder
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will have the right to select the underwriter, which shall be reasonably
acceptable to the Company. No securities other than Registrable Common Stock may
be registered in connection with a Demand Registration without the consent of
the holders of a majority of the outstanding Registrable Common Stock whose
shares are subject to such Demand Registration.
(b) NUMBER OF DEMAND REGISTRATIONS; EFFECTIVE
REGISTRATION; EXPENSES. Subject to SECTION 5, so long as (i) Holdings holds
Registrable Common Stock, it (and its transferees), shall be entitled to
initiate and have effected one (1) Demand Registration which shall be a shelf
registration and (ii) ▇▇▇▇▇ holds Registrable Common Stock, it (and its
transferees) shall be entitled to initiate and have effected an aggregate of
three (3) Demand Registrations; PROVIDED THAT unless the Demand Registration
covers all Registrable Stock owned by the shareholder owning such stock, the
Company shall not be obligated to effect a Demand Registration unless the party
initiating the Demand Registration proposes to sell Registrable Common Stock at
an aggregate price (calculated based upon the market price of the Registrable
Common Stock on the date of filing of the registration statement with respect to
such Registrable Common Stock) to the public of not less than $5,000,000. The
Company shall pay all Registration Expenses of all such Demand Registrations in
accordance with SECTION 7 hereof. The Company shall not be deemed to have
effected a Demand Registration unless and until (i) the Company has filed a
registration statement with the Commission and (ii) the registration statement
has been declared effective by the Commission. Furthermore, if Holdings' right
to make dispositions of Registrable Common Stock pursuant to a Shelf
Registration Statement shall be suspended by the Company under Section 5 below
for a period of more than 100 days or for a period during which the market price
for the Company's common stock shall have reduced by fifty percent (50%) or more
from the closing market price on the day preceding the day notice of suspension
is given by the Company, then Holdings shall be entitled to initiate and have
effective an additional Demand Registration which shall be a shelf registration.
(c) GRANT OF NEW REGISTRATION RIGHTS. From and after the
date of this Agreement and until this Agreement is terminated, the Company shall
not grant any registration rights to any person that could adversely affect the
registration rights of either Holdings or ▇▇▇▇▇ hereunder or are inconsistent
with the registration rights of either Holdings or ▇▇▇▇▇ hereunder without the
prior written consent, as applicable, of Holdings and ▇▇▇▇▇; PROVIDED, however,
that the granting of piggy-back registration rights that are not superior to the
registration rights granted under SECTION 4 hereof with respect to cut-backs or
reductions required by underwriters shall not, in and of itself, be deemed to
adversely affect the rights of either Holdings or ▇▇▇▇▇ or be inconsistent with
such rights if the piggy-back registration rights granted after the date of this
Agreement are first cut-back or reduced.
(d) TERMINATION OF PRIOR REGISTRATION RIGHTS. By entering
into this Agreement Holdings and ▇▇▇▇▇, on behalf of themselves and their
affiliates, expressly consents to and acknowledges that any registration
right(s) related to any securities of the Company held prior to the date hereof
by it is/are terminated as of the date hereof.
(e) CONCERNING THE DEMAND REGISTRATION RIGHTS OF
HOLDINGS. If the Company, at any time, ceases to be obligated to file reports
under the Exchange Act (a "public reporting company"), then the Demand
Registration which Holdings (and its transferees) are entitled to
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initiate and have effected pursuant to SECTION 2(B) above shall expire;
PROVIDED, that if the Company at any time thereafter becomes a public reporting
company, Holdings (and its transferees), as long as it holds Registrable Common
Stock, shall again be entitled to initiate and have effected one (1) Demand
Registration which shall be a shelf registration and otherwise subject to the
proviso in the first sentence of SECTION 2(B).
Section 3. SHELF REGISTRATION. The Company will, as
soon as possible following a written request pursuant to SECTION 2(A) for the
registration of Registrable Common Stock by means of a Shelf Registration
Statement, file a shelf registration statement on Form S-3 covering the
Registrable Common Stock and thereafter shall use its best efforts to cause the
Shelf Registration Statement to be declared effective as soon as practicable
following such filing and to take any and all reasonable action within the
Company's control, subject to and in accordance with SECTION 5, as may be
necessary or appropriate to maintain such effectiveness until such time as
neither any holder nor any of their assignees own any Registrable Common Stock;
PROVIDED however, that the Company shall not be required to maintain the
effectiveness of any such Shelf Registration Statement for longer than ninety
days (90) from the effective date of such registration statement.
Section 4. PIGGY-BACK REGISTRATION. (a) If the Company
proposes to file a registration statement under the Securities Act with respect
to an offering by the Company for its own account or for the account of others
(the "INITIATING SHAREHOLDERS") of any class of security (other than pursuant to
a registration statement on Forms S-4 or S-8 (or successor forms) or in
connection with an exchange offer or an offering of securities solely to the
Company's existing stockholders), including a Demand Registration Statement or a
Shelf Registration Statement, then, subject to the last sentence of SECTION
2(A), the Company shall in each case give written notice of such proposed filing
to the holders of Registrable Common Stock (which notice shall indicate, to the
extent then known, the proposed managing underwriter or underwriters, if such
offering is to be underwritten, and such other terms of the proposed offering
that the Company reasonably believes to be material to the holders of
Registrable Common Stock) and shall include in such registration statement all
or a portion of the Registrable Common Stock owned by such holders which such
holders shall request to be so included by written notice given by such holders
to the Company within 10 business days after such holder's receipt of such
notice from the Company (a "PIGGY-BACK REGISTRATION"). Subject to the last
sentence of SECTION 2(A), the Company shall use its best efforts to effect the
registration of all Registrable Common Stock requested to be so registered in
such offering on the same terms and conditions as any securities of the Company
of the same class included therein. If the managing underwriter or underwriters
of an underwritten offering, if any, advise the holders of Registrable Common
Stock in writing that in its or their reasonable opinion or, in the case of a
Piggyback Registration not being underwritten, the Company shall reasonably
determine (and notify the holders of Registrable Common Stock of such
determination), after consultation with an investment banker of nationally
recognized standing, that the number of shares of Common Stock or other
securities proposed to be sold in such registration will adversely affect the
success of such offering, the Company will include in such registration the
number of securities, if any, which, in the opinion of such underwriter or
underwriters, or the Company, as the case may be, can be sold as follows: (A) if
such registration was initiated by the Company, (i) FIRST, the shares the
Company proposed to sell, (ii) SECOND, the Registrable Common Stock and other
shares of Common Stock requested to be included in such registration by the
holders thereof entitled to participate in such registration under this
Agreement or under any registration rights
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agreement in effect on the date hereof and (iii) THIRD, the Common Stock
requested to be included in such registration by the holders thereof entitled to
participate in such registration under a registration rights agreement effective
after the date hereof and (B) if such registration was initiated as the result
of the exercise of a demand registration right of holders of Common Stock and
the holders referred to in the last sentence of SECTION 2(A) have consented to
the inclusion of such other securities (i) FIRST, the shares of Common Stock
requested to be included in such registration by the demanding holders pro rata
among those requesting such registration on the basis of the number of shares of
Common Stock requested to be included), (ii) SECOND, shares to be issued and
sold by the Company and shares held by Persons other than the demanding holders
and requested to be included in such registration either pursuant to this
Agreement or pursuant to any registration rights agreement in effect on the date
hereof and (iii) THIRD, the Common Stock requested to be included in such
registration by the holders thereof entitled to participate in such registration
under registration rights agreements effective after the date hereof. To the
extent that the privilege of including Registrable Common Stock or other shares
of Common Stock in any Piggyback Registration must be allocated among the
holders thereof pursuant to clause (A)(ii) or (B)(ii) above, the allocation
shall be made pro rata based on the number of shares of Common Stock that each
such participant shall have requested to include therein and to the extent that
the privilege of including Common Stock in any Piggyback Registration must be
allocated among the holders thereof pursuant to clause (A)(iii) or (B)(iii)
above, the allocation shall be made pro rata based on the number of shares of
Common Stock that each such participant shall have requested to include therein.
Notwithstanding the above, if the managing underwriter or underwriters of an
underwritten offering, if any, advise the Company that it or they intend to
sell, as an over-allotment option, a number of shares of Common Stock or other
securities in excess of the number of shares of Common Stock requested to be
sold by the parties pursuant to this SECTION 4(A) (the "EXCESS STOCK"), the
Excess Stock to be sold shall be sold by the holders of the Registrable Common
Stock and shall be allocated among them pro rata based upon the number of shares
of Registrable Common Stock that each such holder holds in excess of the stock
requested to be sold pursuant to this SECTION 4(A).
(b) The holders of Registrable Common Stock to be
distributed by such underwriters shall be parties to the underwriting agreement
between the Company and such underwriters. 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 the holders of
Registrable Common Stock to be distributed by such underwriters, and the
conditions precedent to the obligations of such holders of Registrable Common
Stock under such underwriting agreement shall be reasonably satisfactory to such
holders. Such holders shall not be required to make any representations or
warranties to the Company or its underwriters other than representations or
warranties regarding such holder, such holder's interest in the shares to be
distributed and such holder's intended method of distribution. The Company shall
have the right to discontinue any piggy-back registration under this SECTION 4
at any time prior to the effective date of such registration if the registration
of the securities giving rise to such registration under this SECTION 4 is
discontinued by the Company, but no such discontinuation shall preclude an
immediate or subsequent request by the holders of Registrable Common Stock for
registration pursuant to SECTION 2 hereof if otherwise permitted.
Section 5. RESTRICTIONS ON DISPOSITIONS AND DEMAND
REGISTRATIONS. Notwithstanding anything to the contrary contained herein, the
Company shall not be obligated to
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prepare and file any registration statement pursuant to a Demand Registration or
prepare or file any amendment or supplement thereto and may suspend, by giving
written notice to the holders of Registrable Common Stock, such holders' rights
to make dispositions of Registrable Common Stock pursuant to a Shelf
Registration Statement, at any time when the Company reasonably believes that
the filing thereof at the time requested, or the offering or sale of securities
pursuant thereto, would materially adversely affect a pending or proposed public
offering of the Company's securities, or an acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction or
negotiations, discussions or pending proposals with respect thereto. The rights
of holders of Registrable Common Stock to make dispositions thereof pursuant to
a Shelf Registration Statement may similarly be suspended by the Company upon
written notice to the holders of Registrable Common Stock that the Shelf
Registration Statement is unusable as a result of an event requiring a
post-effective amendment or supplement, which has not yet been filed, and will
remain unusable until the supplement is filed or post-effective amendment is
filed and declared effective. The filing of a registration statement, or any
amendment or supplement thereto, by the Company cannot be deferred, and the
holders' rights to dispose of Registrable Common Stock pursuant to a Shelf
Registration Statement cannot be suspended for more than 90 days, and may not be
so deferred or suspended more than 180 days during any twelve month period,
unless such deferral or suspension is agreed to in writing by the holders of
Registrable Common Stock subject to such suspension or deferral and, with
respect to suspended dispositions, the Company shall be obligated to maintain
the effectiveness of the applicable registration statement for an additional
period of time equal to the period of suspension(s).
Section 6. REGISTRATION PROCEDURES.
(a) CERTAIN COMPANY OBLIGATIONS. Whenever Registrable
Common Stock is to be registered pursuant to SECTIONS 2 OR 3 of this Agreement,
the Company will use reasonable diligence to effect the registration of such
Registrable Common Stock in accordance with the intended method of disposition
thereof as quickly as practicable, and in connection with any such request and
with the Piggy-back Registration or Demand Registration, the Company will as
expeditiously as possible:
(i) prepare and file with the Commission a
registration statement which includes the Registrable Common
Stock requested to be included and use its best efforts to
cause such registration statement to become effective (which
registration statement, in the case of a Demand Registration,
shall in all events be filed with the Commission within 75
days after the Company's receipt of the Demand Registration,
subject to the limitations set forth in SECTION 5); provided
that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company will
furnish to the holders of the Registrable Common Stock covered
by such registration statement and the underwriters, if any,
draft copies of all such documents proposed to be filed at
least five (5) business days prior thereto (or, in the case of
any amendments to documents that have previously been filed
with the Commission, such shorter period of time if the
Company reasonably believes it is necessary in order to effect
the registration on a timely basis so long as such period is
not less than 24 hours), which documents will be subject to
the reasonable review of such holders and underwriters, and
provided further that if such registration statement refers to
any holder of Registrable Common Stock by
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name or otherwise as the holder of any securities of the
Company, then such holder shall have the right to require (i)
the insertion therein of language, in form and substance
satisfactory to such holder, to the effect that the holding by
such holder of such securities does not necessarily make such
holder a "controlling person" of the Company within the
meaning of the Securities Act and is not to be construed as a
recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding
does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (ii) in the
event that such reference to such holder by name or otherwise
is not required by the Securities Act or any rules and
regulations promulgated thereunder, the deletion of the
reference to such holder;
(ii) prepare and file as soon as reasonably
practicable with the Commission such amendments and
post-effective amendments to the registration statement as may
be necessary to keep the registration statement effective for
the period of time specified in SECTION 3 with respect to the
Shelf Registration Statement and otherwise for 90 days (or
such shorter period which will terminate when all Registrable
Common Stock covered by such registration statement has been
sold or withdrawn); cause the prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all securities covered
by such registration statement during the applicable period in
accordance with the intended methods of disposition by the
holders thereof set forth in such registration statement or
supplement to the prospectus;
(iii) furnish to any holder of Registrable Common
Stock included in such registration statement and to the
managing underwriter or underwriters, if any, without charge,
at least one signed copy of the registration statement and any
post-effective amendment thereto, upon request, and such
number of conformed copies thereof and such number of copies
of the prospectus (including each preliminary prospectus) and
any amendments or supplements thereto, and any documents
incorporated by reference therein, as such holder or
underwriter may reasonably request in order to facilitate the
disposition of the Registrable Common Stock being sold by such
holder;
(iv) notify in writing each holder of Registrable
Common Stock included in such registration statement, at any
time when a prospectus relating-thereto is required to be
delivered under the Securities Act, when the Company becomes
aware of the happening of any event as a result of which the
prospectus included in such registration statement (as then in
effect) contains any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein (in the case of the prospectus or any
preliminary prospectus, in light of the circumstances under
which they were made) not misleading and, as promptly as
practicable thereafter, prepare and file with the Commission
and furnish a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such
Registrable Common Stock, such prospectus will not contain any
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untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading;
(v) use reasonable diligence to cause all
Registrable Common Stock included in such registration
statement to be listed, by the date of the first sale of
Registrable Common Stock pursuant to such registration
statement, on each securities exchange on which the Common
Stock of the Company is then listed or proposed to be listed,
if any, and use reasonable diligence to cause all Registrable
Common Stock included in such Registration Statement to be
quoted on The Nasdaq Stock Market (or other national or
small-cap market), if the Common Stock of the Company is then
quoted thereon;
(vi) make generally available to its security
holders an earnings statement satisfying the provisions of
SECTION 11(A) of the Securities Act as soon as practicable,
which earnings statement shall cover the requisite 12-month
period, which requirements will be deemed to be satisfied if
the Company timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise
complies with Rule 158 under the Securities Act as soon as
feasible;
(vii) if requested by the managing underwriter or
underwriters or any holder of Registrable Common Stock covered
by the registration statement, promptly incorporate in a
prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters or
such holder reasonably requests to be included therein,
including, without limitation, with respect to the Registrable
Common Stock being sold by such holder to such underwriter or
underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any other
terms of the underwritten offering of the Registrable Common
Stock to be sold in such offering, and promptly make all
required filings of such prospectus supplement or
post-effective amendment;
(viii) on or prior to the date on which the
registration statement is declared effective, use reasonable
diligence to register or qualify, and cooperate with the
holders of Registrable Common Stock included in such
registration statement, the underwriter or underwriters, if
any, and their counsel, in connection with the registration or
qualification of the Registrable Common Stock covered by the
registration statement for offer and sale under the securities
or blue sky laws of each state and other jurisdiction of the
United States as any such holder or underwriter reasonably
requests in writing, to use reasonable diligence to keep each
such registration or qualification effective, including
through new filings, or amendments or renewals, during the
period such registration statement is required to be kept
effective and to do any and all other acts or things necessary
or advisable to enable the disposition in all such
jurisdictions of the Registrable Common Stock covered by the
applicable registration statement; provided that the Company
will not be required to qualify generally to do business in
any jurisdiction where it is not then so
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qualified or to take any action which would subject it to
general service of process in any such jurisdiction where it
is not then so subject;
(ix) cooperate with the holders of Registrable
Common Stock covered by the registration statement and the
managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be
sold under the registration statement, and enable such
securities to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or
such holders may request;
(x) enter into such customary agreements
(including an underwriting agreement in customary form) and
take all such other actions as the holders of the Registrable
Common Stock being sold or the underwriters retained by
holders participating in an underwritten public offering, if
any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Common Stock;
(xi) make available for inspection by the
holders, by any underwriter participating in any disposition
to be effected pursuant to such registration statement and by
any attorney, accountant or other agent retained by the
holders or any such underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of
the Company, and cause all of the Company's officers,
directors and employees to supply all information, reasonably
requested by the holders or any such seller, underwriter,
attorney, accountant or agent in connection with such
registration statement. In that connection, the Company may
require the holders, such underwriter and such other persons
to conduct their investigation in a manner which does not
disrupt the operations of the Company and to execute such
confidentiality agreements as the Company may reasonably
determine to be advisable;
(xii) notify each holder of Registrable Common
Stock of any stop order issued or threatened by the Commission
in connection with any registration statement covering
Registrable Common Stock and take all reasonable actions
required to prevent the entry of such stop order or to remove
it if entered; and
(xiii) if such sale is pursuant to an underwritten
offering, obtain "cold comfort" letters dated the effective
date of the registration statement and the date of the closing
under the underwriting agreement from the Company's
independent public accountants in customary form and covering
such matters of the type customarily covered by "cold comfort"
letters as the counsel of the holders of Registrable Common
Stock may reasonably request or the managing underwriter
reasonably requests.
(b) CERTAIN OBLIGATIONS OF HOLDERS OF REGISTRABLE COMMON
STOCK. Each holder of Registrable Common Stock shall provide the Company in
writing such information as the Company reasonably requests in order to
effectuate the registration and disposition of such holder's Registrable Common
Stock pursuant to this Agreement and such holder shall execute all consents,
9
powers of attorney, registration statements and other documents reasonably
required to be signed by such holder in order to effectuate the registration or
disposition of Registrable Common Stock by such holder.
Section 7. REGISTRATION EXPENSES. The Company shall pay
all expenses incident to the Company's performance of or compliance with its
obligations hereunder, including, without limitation, all registration, filing
and National Association of Securities Dealers, Inc. fees, all fees and expenses
of complying with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, and the reasonable fees
and disbursements of the Company's independent public accountants, the Company's
counsel and reasonable fees and expenses of one law firm acting as counsel to
the holders requesting registration of all or a portion of their Registrable
Common Stock. Holders of Registrable Common Stock requesting registration will
be responsible for any other expenses incurred by them, including for their own
accountants and representatives, as well as any underwriting discounts and
commissions on the sale of the Registrable Common Stock.
Section 8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each holder of Registrable Common Stock, its
officers, directors, partners and members (and officers and directors of such
partners and members) and each person who controls such holder (within the
meaning of the Securities Act) against all losses, claims, damages or
liabilities arising out of or based upon any untrue or alleged untrue statement
of material fact contained in any registration statement registering the
disposition of Registrable Common Stock, any amendment or supplement thereto,
any prospectus or preliminary prospectus 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, except insofar as the same arise out of
or are based upon, any such untrue statement or omission based upon information
furnished in writing to the Company by such indemnified person expressly for use
therein and will reimburse, as incurred, such holder, officer, director,
partner, member or controlling person for any legal or other expenses incurred
by such holder, officer, director, partner, member or controlling person in
connection with investigating, defending or appearing as a third party witness
in connection with any such loss, claim, damage, or liability. In connection
with an underwritten offering, the Company will indemnify, and reimburse for
expenses, the underwriters thereof, their officers and directors and each person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to holders of Registrable Common
Stock.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE COMMON
STOCK. In connection with any registration statement in which a holder of
Registrable Common Stock is participating, such holder will furnish to the
Company in writing such information with respect to the name and address of such
holder and the amount of Registrable Common Stock held by such holder and such
other information as the Company shall reasonably request, for use in connection
with any such registration statement or prospectus and agrees to indemnify the
Company, its directors and officers, any underwriter (within the meaning of the
Securities Act) for the Company or other persons selling securities pursuant to
such registration statement, and each person who controls the Company, against
any losses, claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact or any omission of a material fact required to be
stated in the
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registration statement or prospectus or any amendment thereof or supplement
thereto or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information with respect to such holder so furnished in writing
by such holder expressly for inclusion in any prospectus or registration
statement. In no event shall the liability of any selling holder of Registrable
Common Stock hereunder be greater in amount than the dollar amount of the net
proceeds received by such holder upon the sale of the Registrable Common Stock
giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such person of any written notice of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing as to which such person will claim indemnification or
contribution pursuant to this Agreement and, unless in the reasonable judgment
of such indemnified party a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to such indemnified party. The failure to notify the
indemnifying party promptly of such commencement or threat shall not relieve the
indemnifying party of its obligation to indemnify the indemnified party, except
to the extent that the indemnifying party is actually prejudiced by such
failure. Whether or not such defense is assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). No
indemnifying party will 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 of such claim or litigation. If the indemnifying party is
not entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for the
indemnified party or parties with respect to such claim, unless in the
reasonable judgment of any indemnified party an actual conflict of interest
exists between such indemnified party and any other of such indemnified parties
with respect to such claim, in which event the indemnified party shall be
obligated to pay the fees and expenses of such additional counsel or counsels.
(d) CONTRIBUTION. If the indemnification provided for in
this SECTION 8 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the 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,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact, has been made by, or
related to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in SECTION 8(B), any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
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The parties hereto agree that it would not be just and
equitable if contribution pursuant to this SECTION 8(D) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this SECTION 8(D), no underwriter
shall be required to contribute any amount in excess of the amount by which the
underwriting discount applicable to the Registrable Common Stock purchased by it
and distributed to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no selling holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Common Stock of such selling holder was
offered to the public exceeds the amount of any damages which such selling
holder has otherwise been required to pay by reason of such untrue statement or
omission. 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.
The obligations of the Company pursuant to this SECTION 8
shall be further subject to such additional express agreements of the Company as
may be required to facilitate an underwritten offering, provided that no such
agreement shall in any way limit the rights of the holders of Registrable Common
Stock under this Agreement, or create additional obligations of such holders not
set forth herein, except as otherwise expressly agreed in writing by any such
holders. The obligations of the Company pursuant to this SECTION 8 shall be in
addition to any liability or obligation the Company may have at common law or
otherwise.
Section 9. RULE 144. The Company covenants that for so
long as any Holder owns any Registrable Common Stock and the Company is a public
reporting company, that it will file, in a timely manner, 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, and it will take such
further action as any holder of Registrable Common Stock may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Common Stock 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 Common Stock, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
Section 10. REMEDIES. Each holder of Registrable Common
Stock in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate. If any
party hereto fails to perform any of its obligations under this Agreement, then
the defaulting party shall pay any and all costs and expenses incurred by the
other party on account of such default, including, without limitation, court
costs and reasonable attorneys' fees and disbursements. Any such attorneys' fees
and other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to any
other amount included in such judgment, and
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such attorneys' fees obligation is intended to be severable from the other
provisions of this Agreement and to survive and not be merged into any such
judgment.
Section 11. BINDING EFFECT; TRANSFEREES; TERMINATION.
Except to the extent otherwise provided herein, the provisions of this Agreement
shall be binding upon and accrue to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns. A
transferee of Registrable Common Stock, which acquires such securities from a
holder of Registrable Common Stock in a transfer, whether in a public
distribution or otherwise, which results in such transferred securities not
being Registrable Common Stock in the hands of such transferee, shall not be a
holder of Registrable Common Stock hereunder and shall not have any rights or
obligations hereunder as a result of such transfer of Registrable Common Stock.
Except as provided in the preceding sentence, a transferee of a holder of
Registrable Common Stock, whether becoming such by sale, transfer, assignment,
operation of law or otherwise, shall be deemed to be a holder of Registrable
Common Stock hereunder and such transferee shall be entitled to the rights, and
subject to the obligations, of such a holder hereunder; provided, (i) notice of
such transfer (containing the name and address of the transferee) is given to
the Company and (ii) such transferee agrees to be bound by the terms of this
Agreement as a holder of Registrable Common Stock. This Agreement shall
terminate as to any Person at such time as such Person no longer holds shares of
Registrable Common Stock.
Section 12. AMENDMENTS AND WAIVERS. This Agreement may
be amended, but only with the written consent of each party being adversely
affected by such amendment; provided that SECTION 2(C) and the cutback
provisions of SECTION 4 may be amended or waived only with the consent of both
(i) the holders of a majority of the Registrable Common Stock then held by
Holdings and its affiliates, and (ii) the holders of a majority of the
Registrable Common Stock then held by ▇▇▇▇▇ and its affiliates. No failure or
delay (whether by course of conduct or otherwise) by the parties hereto in
exercising any right, power or remedy which they may have under this Agreement
shall operate as a waiver thereof or of any other right, power or remedy, nor
shall any single or partial exercise by the parties hereto of any such right,
power or remedy preclude any other or further exercise thereof or of any other
right, power or remedy. No waiver of any provision of this Agreement and no
consent to any departure therefrom shall ever be effective unless it is in
writing and signed by each party being adversely affected by such waiver or
consent; provided that SECTION 2(C) and the cutback provisions of SECTION 4 may
be amended or waived with the consent of both (i) the holders of a majority of
the Registrable Common Stock then held by Holdings and its affiliates, and (ii)
the holders of a majority of the Registrable Common Stock then held by ▇▇▇▇▇ and
its affiliates, and then such waiver or consent shall be effective only in the
specific instances and for the purposes for which given and to the extent
specified in such writing. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to the parties at law or
in equity or otherwise.
Section 13. NOTICES. All notices, requests, consents,
demands and other communications required or permitted under this Agreement
shall be in writing and shall be deemed sufficiently given or furnished upon
delivery, when delivered by personal delivery, by telecopy, by delivery service
with proof of delivery, or three days after being deposited in the US mail as
registered or certified United States mail, postage prepaid, if to a holder of
Registrable Common Stock at the most current address given by such holder to the
Company; if to the Company at:
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Inland Resources Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 14. ENTIRE AGREEMENT This Agreement constitutes
the entire understanding between the parties with respect to the subject matter
hereof, superseding all prior negotiations, preliminary agreements,
correspondence or understandings, written or oral between the parties with
respect to the subject matter hereof. Except as expressly provided herein, there
are no representations or warranties of any party hereto.
Section 15. COUNTERPARTS. Two or more duplicate
originals of this Agreement may be signed by the parties, each of which shall be
an original but all of which together shall constitute one and the same
instrument.
Section 16. HEADINGS. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 17. GOVERNING LAW. This Agreement shall be
governed by and interpreted in accordance with the internal laws of the State of
New York without reference to the conflicts of the law provisions thereof.
Section 18. SEVERABILITY. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
[REMAINDER OF PAGE LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
INLAND RESOURCES INC.,
a Washington corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Executive Officer
INLAND HOLDINGS LLC, a California limited
liability company,
By: TRUST COMPANY OF THE WEST, a California
trust company, as Sub-Custodian for
Mellon Bank for the benefit of Account
No. CPFF 873-3032, Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
By: PORTFOLIO NO. 1555 DR V SUB-CUSTODY
PARTNERSHIP, L.P., a California limited
partnership, Member
By: TCW ROYALTY COMPANY, a California
corporation, Managing General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
HAMPTON INVESTMENTS LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President