REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made this 23rd
day of December 1999, by and between Tipperary Corporation, a Texas corporation
(the "Company"), whose principal place of business is 633 Seventeenth Street,
Suite 1550, Denver, Colorado 80202, and Slough Estates USA Inc., a Delaware
corporation (the "Holder"), whose office is located at 33 West Monroe Street,
Suite 2000, Chicago, Illinois 60603.
WHEREAS, the parties have entered into a Subscription Agreement of even
date herewith (the "Subscription Agreement") under which the Holder is
purchasing from the Company 6,329,114 shares of the Company's 1999 Series A
Convertible Cumulative Preferred Stock (the "Series A Preferred Stock"); and
WHEREAS, under the Statement of Resolution Establishing a Series of Shares
(the "Statement of Resolution"), holders of shares of the Series A Preferred
Stock may convert such shares, in whole or in part, along with accumulated but
unpaid dividends, into restricted shares of the Company's Common Stock, $.02 par
value ("Common Stock"); and
WHEREAS, under the Statement of Resolution, at the election of the Company,
dividends on the Series A Preferred Stock may be payable in shares of restricted
Common Stock; and
WHEREAS, the parties have agreed that the Holder or a subsequent holder of
restricted shares of Common Stock received upon conversion of the Series A
Preferred Stock or received in payment of dividends on the Series A Preferred
Stock will have rights, subject to certain terms and conditions, to demand that
such shares of Common Stock be registered under the Securities Act of 1933, as
amended (the "Securities Act");
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the Subscription Agreement, the parties hereto agree as
follows:
1. Registration Rights of Subsequent Holders. This Agreement shall be
deemed to be assigned by the Holder or any subsequent holder to each transferee
of shares of the Series A Preferred Stock or restricted shares of Common Stock
received upon conversion of any shares of the Series A Preferred Stock or in
respect of dividends on the Series A Preferred Stock; provided, however, that no
such assignment shall be deemed to have occurred unless and until the transfer
of the shares of Series A Preferred Stock or such Common Stock is registered on
the books of the Company. Such shares of Common Stock, whether received upon
such conversion or in respect of dividends shall hereafter be referred to as
"Conversion Shares," and hereafter references to the "Holder" or "Holders"
shall, as the context may permit, be deemed to refer to the Holder and/or any
other holders of shares of the Series A Preferred Stock or Conversion Shares.
Each Holder shall provide a copy of this Agreement to each transferee of any
shares of the Series A Preferred Stock or Conversion Shares.
2. Demand Registration Rights.
(a) The Holders who, in the aggregate, own a majority of the total number
of Conversion Shares issued or issuable upon conversion of the Series A
Preferred Stock may request that the Company prepare and file a registration
statement under the Securities Act to permit the public offering
and sale of the Conversion Shares on one occasion. Such registration of
Conversion Shares requested pursuant to this Section 2 shall be referred to as
the "Demand Registration." The Company shall within 10 days thereafter give
written notice to all Holders which do not request the Demand Registration, and
each such Holder shall, within 30 days thereafter, provide a written request to
the Company as to those Conversion Shares which it desires to include in such
registration. Any Holder of Series A Preferred Stock which desires to register
the underlying Conversion Shares must, within 40 days after a majority of the
Holders first request the Demand Registration, convert such shares of Series A
Preferred Stock into Conversion Shares and request that such Conversion Shares
be included in the Demand Registration. Each request by a Holder for the Demand
Registration shall state the intended method of disposition of the Conversion
Shares to be transferred by the Holder. The Company shall use its best efforts
to cause all of the Conversion Shares held by the Holder to be registered under
the Securities Act, all to the extent requisite to permit the sale or other
disposition (in accordance with the intended methods thereof as aforesaid) by
the Holders of such Conversion Shares; provided, however, that no such request
need be honored by the Company if all Holders making the request for the Demand
Registration hold less that 100,000 Conversion Shares.
(b) The Demand Registration shall not be deemed to have been effected if
(i) such registration statement, after it has become effective, is the subject
of any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not primarily attributable to the
selling Holders of Conversion Shares, (ii) the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in connection
with such registration statement are not satisfied, other than by reason of a
failure on the part of the selling Holders of Conversion Shares; or (iii) the
holders of Conversion Shares are not able to register and sell at least ninety
percent (90%) of the Conversion Shares requested to be included in such
registration.
(c) With respect to the Demand Registration, the investment banker or
investment bankers that will manage the offering will be selected by the Holders
of at least a majority of the Conversion Shares included in such offering;
provided that the selection of any such investment banker or investment bankers
is subject to consent by the Company, which consent shall not be unreasonably
withheld.
(d) Any securities other than Conversion Shares to be included in the
Demand Registration shall be reduced to the extent determined necessary by the
managing underwriter of such offering if such managing underwriter shall have
advised the selling Holders in writing (with a copy to the Company) that, in
their opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold within a price range
acceptable to the selling Holders of a majority of the Conversion Shares
requested to be included in such registration. If no such notice or letter is
provided, the Company may include Common Stock for its own account or for the
account of other shareholders of the Company, if and to the extent consented to
by the Holders of at least a majority of the Conversion Shares included in such
offering.
(e) The Company, if requested by at least a majority of the Conversion
Shares to be included in the Demand Registration, (i) shall agree not to, and
shall cause its executive officers and directors not to, effect any public sale
or distribution of its Common Stock or similar securities or securities
convertible into, or exchangeable or exercisable for, Common Stock during the
90-day period following the effective date of a registration statement relating
to a public offering of Conversion Shares if the managing underwriter or
underwriters determine such public sale or distribution would have a material
adverse effect on such offering and (ii) shall (x) cause each securityholder of
the
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Company's privately placed equity securities issued in connection with a
financing transaction involving at least 5% of the Company's then outstanding
equity securities at any time after the date hereof and (y) use its reasonable
best efforts to cause each other securityholder of the Company owning at least
10% of the Company's then outstanding equity securities (other than a
securityholder permitted to file a Schedule 13G under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) to agree, not to effect a public
sale or distribution of the Common Stock during the 90-day period following the
effective date of a registration statement relating to a public offering of the
Conversion Shares if the managing underwriter or underwriters determine such
public sale or distribution would have a material adverse effect on such
offering.
3. Piggyback Registration Rights. If the Company at any time proposes to
register any issuance of its securities under the Securities Act (other than a
registration on Form S-8 in connection with an employee stock purchase or option
plan or on Form S-4 in connection with mergers, acquisitions or exchange
offerings), the Company will at such time give prompt written notice to the
Holders of its intention to do so. Upon the written request of a Holder, given
within 30 days after receipt of any such notice (which request shall state the
intended method of disposition of the Conversion Shares to be transferred by the
Holder), the Company shall use its best efforts to cause all of the Conversion
Shares held by the Holder to be registered under the Securities Act, all to the
extent requisite to permit the sale or other disposition (in accordance with the
intended method thereof as aforesaid) by the Holder of such Conversion Shares;
provided, however, that no such request need be honored by the Company if all
Holders making such a request hold less that 100,000 Conversion Shares. The
rights granted pursuant to this Section 3 shall not be effective with respect to
the Holder in the case of an underwritten public offering of securities of the
Company by the Company unless the Holder agrees to the terms and conditions,
including underwriting discounts and allowances, specified by the managing
underwriter of such offering with respect to such Conversion Shares. The
Company shall have the right to reduce the number of Conversion Shares of the
Holder to be included in a registration statement pursuant to the exercise of
the rights granted by this Section 3 if, and to the extent that, the managing
underwriter of such offering is of the good faith opinion, supported by written
reasons therefor that the inclusion of such Conversion Shares would materially
adversely affect the marketing of the securities of the Company to be offered.
4. Registration Procedure. If and whenever the Company is required by
the provisions of the Section 2 or 3 to use its best efforts to effect the
registration of any transfer of Conversion Shares under the Securities Act, the
Company will, as expeditiously as possible,
(a) prepare and file with the Commission a registration statement with
respect to such transfer and use its best efforts to cause such registration
statement to become and remain effective, but not for any period longer than
nine months;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective, and to comply
with the provisions of the Securities Act with respect to the transfer of all
securities covered by such registration statement, including, without
limitation, taking all necessary actions whenever the Holder, with respect to
such Conversion Shares covered by such registration statement, shall desire to
dispose of the same;
(c) furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as
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the Holders may reasonably request in order to facilitate the disposition of the
Conversion Shares owned by the Holders and covered by such registration
statement;
(d) use its best efforts to register or qualify the securities covered by
such registration statement under such other securities or blue sky laws of such
jurisdictions as the Holders shall request, and use its best efforts to do any
and all other acts and things which may be reasonably necessary to enable the
Holders to consummate the disposition in such jurisdiction of the Conversion
Shares owned by the Holders and covered by such registration statement; provided
that, notwithstanding the foregoing, the Company shall not be required to
register in any jurisdiction as a broker or dealer of securities or to grant its
consent to service of process in any such jurisdiction solely on account of such
intended disposition by the Holders;
(e) furnish to the Holders a signed copy of an opinion of counsel for the
Company, in form and substance acceptable to the Holders, to the effect that:
(A) a registration statement covering such dispositions of Conversion Shares has
been filed with the Commission under the Securities Act and has been made
effective by order of the Commission, (B) such registration statement and the
prospectus contained therein and any amendments or supplements thereto comply as
to form in all material respects with the requirements of the Securities Act,
and nothing has come to such counsel's attention which would cause him to
believe that the registration statement or such prospectus, amendment or
supplement, at the time such registration statement or amendment became
effective or such supplement was filed with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of such
prospectus, amendment or supplement, in the light of the circumstances under
which they were made) not misleading (provided that such counsel need not render
any opinion with respect to the financial statements and other financial,
engineering and statistical data included therein), and (C) to the best of such
counsel's knowledge, no stop order has been issued by the Commission suspending
the effectiveness of such registration statement and no proceedings for the
issuance of such a stop order are threatened or contemplated;
(f) furnish to the Holders a blue sky survey in the form and of the
substance customarily prepared by counsel for the Company and accepted by
sellers of securities in similar offerings, discussing and describing the
application provisions of the securities or blue sky laws of each state or
jurisdiction in which the Company shall be required, pursuant to Section 4(d),
to register or quality such intended dispositions of such Conversion Shares, or,
in the event counsel for the underwriters in such offering shall be preparing a
blue sky survey, cause such counsel to furnish such survey to, and to allow
reliance thereon by, the Holders;
(g) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission under the Securities Act and the Exchange Act,
insofar as they relate to such registration and such registration statement; and
(g) use its best efforts to list such Conversion Shares on any securities
exchange on which any securities of the Company are then listed or to admit such
Conversion Shares for trading in any national market system in which any
securities of the Company are then admitted for trading, if the listing or
admission of such securities is then permitted under the rules of such exchange
or system.
5. Expenses of Registration. With respect to the registration by the
Company of transfers of Conversion Shares under the Securities Act pursuant this
Agreement, the Company shall pay all
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expenses incurred by it (including, without limitation, all registration and
filing fees, printing expenses, blue sky fees and expenses, costs and expenses
of audits, and reasonable fees and disbursements of counsel for the Company and
one special counsel designated by the Holders of a majority of the Conversions
Shares to be registered, but specifically excluding any underwriting discounts
and allowances that are allocable to the Conversion Shares being sold by, and
which shall be paid by, the Holders.
6. Information on Holders. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2, 3 or 4 that
the Holders shall furnish to the Company such written information regarding the
securities held by the Holders as the Company shall reasonably request and as
shall be required in connection with the action to be taken by the Company.
7. Indemnification.
(a) In the event of any registration of any transfer of Conversion Shares
under the Securities Act pursuant to Section 2 or 3, the Company will indemnify
and hold harmless the Holder, each of its officers, directors and partners, and
each other person, if any, who controls the Holder within the meaning of the
Securities Act, and each underwriter, if any, who participates in the offering
of such securities, against any losses, claims, damages or liabilities (or
actions in respect thereof, joint or several, to which the Holder and each
officer, director or partner, controlling person or underwriter may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement under
which such transfer of securities was registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, or arise out of or are based upon the 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, and will reimburse the Holder and each of its
officers, directors and partners, and each such controlling person or
underwriter, for any legal or any other expenses reasonably incurred by the
Holder or its officers, directors and partners or controlling persons or by each
such underwriter, in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
preliminary prospectus or prospectus or such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company through
an instrument duly executed by the Holder specifically for use in the
preparation thereof. In the event of any registration by the Company or any
transfer of securities under the Securities Act pursuant to Section 2 or 3, the
Holder will indemnify and hold harmless the Company, each other person, if any,
who controls the Company within the meaning of the Securities Act and each
officer and director of the Company to the same extent that the Company agrees
to indemnity it, but only with respect to the written information relating to
the Holder furnished to the Company by the Holder.
(b) Each indemnified party shall, as promptly as practicable upon receipt
of notice of the commencement of any action against such indemnified party or
its officers, directors or partners, or any controlling person of such
indemnified party, in respect of which indemnity may be sought from an
indemnifying party on account of the indemnity agreement contained in Section
7(a), notify the indemnifying party in writing of the commencement thereof. The
omission of such indemnified party
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to so notify the indemnifying party of any such action shall not relieve the
indemnifying party from any liability which it may have on account of the
indemnity agreement contained in Section 7(a) to the extent that the failure to
receive such notice within a reasonable period of time shall not have caused
harm, loss or damage to the indemnifying party, provided that, conversely, if
such failure to receive notice shall have caused any harm, loss or damage to the
indemnifying party, such failure shall constitute a defense to any liability
which such indemnifying party may have on account of such agreement to the
extent of the harm, loss or damage so caused. In case any such action shall be
brought against any indemnified party, its officers, directors and partners, or
any such controlling person, and such indemnified party shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in (and, to the extent that the indemnifying party shall
wish, to direct) the defense thereof at the indemnifying party's own expense, in
which event the defense shall be conducted by recognized counsel chosen by the
indemnifying party and approved by the indemnified party (whose approval shall
not unreasonably be withheld) and the indemnified party may participate in such
defense at its own expense (unless it is advised by counsel that actual or
potential differing interests or defenses exist or may exist, in which case such
expenses shall be paid by the indemnifying party, provided that the indemnifying
party shall not be required to pay the expenses for more than one counsel for
all such indemnified parties).
8. Miscellaneous.
8.1 Governing Law. The provisions hereof will be construed in accordance
with the laws of the State of Texas. The Company and the Holder hereby submit
to the jurisdiction of the state and federal courts located in Denver, Colorado
or Chicago, Illinois.
8.2 Indemnification of Company. The Holder agrees to indemnify and hold
harmless the Company and its officers, directors and persons who control the
Company, from and against all damages, losses, costs and expenses (including
reasonable attorneys' fees) which they may incur by reason of the failure of the
Holder to fulfill any of the terms or conditions of this Agreement.
8.3 Entire Agreement; Amendment. This Agreement constitutes the entire
understanding of the parties hereto and supersedes all prior agreements or
understandings with respect to the subject matter hereof. This Agreement may
not be amended or modified except by an instrument in writing signed by the
party against whom enforcement is sought.
8.4 Severability. The invalidity or unenforceability of any particular
provisions of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
8.5 Headings. The section headings contained herein are for convenience
only and are not intended to define or limit the contents of such sections.
8.6 Neutral Interpretation. This Agreement constitutes the product of the
negotiation of the parties hereto, and the enforcement hereof shall be
interpreted in a neutral manner, and not more strongly for or against any party
based upon the source of the draftsmanship hereof.
8.7 Counterparts. This Agreement may be executed in counterparts, which
shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
TIPPERARY CORPORATION SLOUGH ESTATES USA INC.
By:/s/ David L. Bradshaw By:/s/ Marshall D. Lees
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David L. Bradshaw, President and Marshall D. Lees, President
Chief Executive Officer
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