EXHIBIT 10-10
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of the 16th day of
January, 1996 (this "Agreement"), is by and among Amerac Energy Corporation, a
Delaware corporation (the "Issuer"), and Powell Resources, Inc., an Oklahoma
corporation, The Langstroth Family Limited I, a Florida limited partnership,
Thomas O. Goldsworthy and James B. Tollerton (collectively the "Sellers" and
individually a "Seller").
WHEREAS, as an inducement to the Sellers to cause them to enter into
that certain Acquisition Agreement dated as of January 5, 1996 (the "Acquisition
Agreement"), Issuer agreed to enter into this Agreement; and
WHEREAS, under the Acquisition Agreement, Issuer is required to duly
execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Securities Subject
(a) Definitions.
Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Acquisition Agreement. As used herein, the following
terms have the indicated meanings, unless the context otherwise requires:
"Act" means the Securities Act of 1933, as amended.
"Commission" means the Securities and Exchange Commission.
"Holder" means any Seller, as the recipient of any Registrable
Security.
"Registrable Securities" means the Amerac Shares issued to the Sellers
pursuant to the Acquisition Agreement, and any securities issued as a
distribution with respect thereto or in exchange therefor.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement.
(b) Registrable Securities. Any Registrable Security will cease to be
a Registrable Security when (i) a registration statement covering such
Registrable Security has been declared effective by the Commission and it has
been disposed of pursuant to such effective registration statement, (ii) it is
distributed to the public pursuant to Rule 144 (or any similar or
successor rule or provision then in force) under the Act, or (iii) it may be
otherwise transferred without restriction under Rule 144(k) (or any similar
successor rule or provision then in force.
2. Shelf Registration.
(a) At any time after the date one year after the date of this
Agreement and before the date three years after the date of this Agreement, one
or more of Holders of Registrable Securities holding an aggregate of a majority
of the Registrable Securities may request in writing that the Issuer file a
"shelf" registration statement on an appropriate form pursuant to Rule 415 (or
any successor provision that may be adopted by the Commission) under the Act
covering the registration of all, or any portion in excess of 50%, of the
Registrable Securities (the "Shelf Registration"). Such Holder or Holders shall
provide with such request an opinion of counsel that the amount of Registrable
Securities to be offered for public sale in the aggregate may not be sold within
a period of 90 days of the date of such request in accordance with the
provisions of Rule 144 promulgated under the Act. Within five business days of
receipt of such request, the Issuer shall give notice of such request to all of
the remaining Holders of Registrable Securities of its receipt of such request
from such Holder or Holders. Upon the written request of any such Holder
delivered to the Issuer within 10 days after receipt from the Issuer of such
notification (the "Determination Date"), the Issuer will use its best efforts to
cause such of the Registrable Securities as may be requested by any such Holder
(including the Holder or Holders of Registrable Securities giving the initial
request to register hereunder) to be registered under the Act in accordance with
the terms of this Section 2.
(b) Issuer agrees to use its best efforts to file with the Commission
within 30 days of the Determination Date the Shelf Registration, have the Shelf
Registration declared effective as soon as practicable after the filing thereof
and to keep the Shelf Registration continuously effective until three years
after the date of this Agreement or until there are no more Registrable
Securities, whichever shall occur first. Issuer further agrees to supplement or
amend the Shelf Registration, (i) if required by the Act or (ii) to update
information with respect to the Holders or the plan of distribution if requested
by the Holders of a majority of the Registrable Securities, and Issuer agrees to
furnish to the Holders copies of any such supplement or amendment promptly after
its being filed with the Commission. The Holders of Registrable Securities
registered in the Shelf Registration shall pay one-half of the Registration
Expenses (as hereinafter defined) in connection with the Shelf Registration,
whether or not it becomes effective. Issuer will make available to its
securityholders (i) as soon as reasonably practicable, from time to time, for
three years, statements of operations covering each successive three-month
period, commencing on the first day of the fiscal quarter next succeeding the
effective date of such Shelf Registration and (ii) as soon as reasonably
practicable after 12 months have elapsed from such date, a statement of
operations covering a period of 12 months, which earnings statements shall
satisfy the provisions of Section 11(a) of the Act.
(c) The Holders of a majority of the Registrable Securities, in their
sole discretion, shall determine whether to proceed with, withdraw from or
terminate the Shelf Registration. If the Shelf Registration is withdrawn or
terminated pursuant to the foregoing clause and the Holders pay all Registration
Expenses incurred by Issuer in connection with the
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terminated or withdrawn registration statement, such registration statement
shall not constitute the Shelf Registration pursuant to this Section 2.
(d) In the event Issuer grants piggy-back registration rights to other
securityholders and such securityholders elect to have shares of Amerac Common
Stock registered in the Shelf Registration, the amount of Registration Expenses
payable by the Holders pursuant to paragraph 2(b) shall be reduced to an amount
equal to the product of (i) one-half of the Registration Expenses and (ii) the
percentage of the total number shares of Amerac Common Stock being registered in
the Shelf Registration represented by the Registrable Securities being
registered on behalf of the Holders.
3. Piggy-Back Registration
(a) If at any time beginning on the date hereof and ending three years
after such date the Issuer proposes to file a registration statement under the
Act with respect to any offering of any securities of Issuer (other than a
registration statement on Form S-4 or S-8 (or any substitute form for comparable
purposes that may be adopted by the Commission) or a registration statement
filed in connection with an exchange offer or an offering of securities solely
to Issuer's existing securityholders), then Issuer shall in each such case give
written notice of such proposed filing to the Holders of Registrable Securities
as soon as practicable (but in no event less than 10 days before the anticipated
filing date), and such notice shall offer such Holders the opportunity to
register such number of shares of Registrable Securities for sale pursuant to
such offering as each such Holder may request.
(b) Issuer shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in the registration statement
for such offering to be included on the same terms and conditions as any similar
securities of Issuer or of any other selling securityholders included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such offering determines that because of the size of the offering which the
Holders of such Registrable Securities, the Issuer, and such other persons
intend to make, the success of the offering of the Issuer's securities could
reasonably be expected to be materially and adversely affected by inclusion of
the Registrable Securities requested to be included, then the managing
underwriters shall provide written notice of such determination to the Holders
of the Registrable Securities, and the amount of securities to be offered for
the accounts of Holders shall be reduced pro rata among the Holders to the
extent necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter or underwriters;
provided that if securities are being offered for the account of other persons
or entities other than Issuer, then the proportion by which the amount of
securities intended to be offered by Holders is reduced shall not exceed the
proportion by which the amount of securities intended to be offered by such
other persons or entities other than Issuer is reduced. Issuer will bear all
Registration Expenses in connection with a piggy-back registration.
(c) As a condition to a Holder's participation in any underwriting
with respect to Issuer pursuant to this Section 3, the Holder shall be required
to enter into customary
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agreements (including an underwriting agreement in customary form) and take such
other actions as are reasonably required by the underwriters in order to include
the Registrable Securities for sale pursuant to such underwritten offering.
(d) Issuer represents and warrants that, as of the date hereof, no
other securityholder of Issuer has been granted "piggy-back" registration
rights.
4. Holdback Agreements
(a) Restrictions on Public Sale Holder of Registrable Securities. To
the extent not inconsistent with applicable law, each Holder whose securities
are included in a registration statement pursuant to Section 3 agrees not to
effect any public sale or distribution of the issue being registered or a
similar security of Issuer, or any securities convertible into or exchangeable
or exercisable for such securities, including a sale pursuant to Rule 144 under
the Act, during the fourteen (14) days prior to, and during the ninety-day
period beginning on, the effective date of such registration statement (except,
in each case, as part of such registration), if and to the extent requested by
the managing underwriter or underwriters.
(b) Postponement of Sale under Shelf Registration Statement. Each
Holder agrees not to effect any public sale or distribution pursuant to any
Shelf Registration pursuant to this Agreement at any time that Issuer shall have
advised the Holders in writing that the sale by such Holders pursuant to such
Shelf Registration could reasonably be expected to (i) adversely affect, or
require the premature disclosure of any proposed acquisition, disposition or
other transaction involving Issuer or (ii) materially and adversely affect any
proposed underwritten public offering of Amerac Common Stock if the managing
underwriter thereof shall have advised the Holders that any such sales could
reasonably be expected to jeopardize the success of the offering; provided,
however, in each such case Issuer may not restrict any such sales unless at
least five days prior written notice is provided to each Holder and provided
further Issuer may not restrict sales by Holders (x) for a total of more than 90
days during any one-year period or (y) for more than 60 consecutive days after
the date of the prospectus for any such underwritten public offering.
5. Registration Procedures
Whenever Registrable Securities are required to be registered pursuant
to Section 3 hereof, Issuer will use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof as quickly as practicable, and in connection with
any such request and with the Shelf Registration, Issuer will, as expeditiously
as possible:
(a) (i) prior to filing a registration statement or prospectus or any
amendments or supplements thereto, furnish to one counsel selected by the
Holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel, (ii) as soon as reasonably
possible, furnish to each Selling Holder, prior to filing a registration
statement,
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copies of such registration statement as proposed to be filed, and thereafter
furnish to such Selling Holder such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such Selling
Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Selling Holder, and (iii) after the filing
of the registration statement, promptly notify each Selling Holder of
Registrable Securities covered by such registration statement of any stop order
issued or threatened by the Commission and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the registration statement as may be necessary to keep
the registration statement effective for (i) a period of not less than nine (9)
months in the case of a registration statement on Forms S-1 or S-2, or (ii) an
indefinite period in the case of a registration statement on Form S-3 (or such
shorter period which will terminate when all Registrable Securities covered by
such registration statement have been sold or withdrawn, but not prior to the
expiration of the 25-day period referred to in Section 4(3) of the Act and Rule
174 thereunder, if applicable); cause the prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act; and comply with the provisions of the Act applicable to
it with regard 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 sellers thereof set forth in such registration statement
or supplement to the prospectus;
(c) if requested by the managing underwriter or underwriters or any
Holder of Registrable Securities 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, as the
case may be, reasonably requested to be included therein, including, without
limitation, information with respect to the number of Registrable Securities
being sold by such holder to an 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 Securities to be
sold in such offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment;
(d) enter into such customary agreements (including an underwritten
agreement in customary form with provisions as may be reasonably required by the
managing underwriter retained by the holder of Registrable Securities) and take
all such other actions as the holders of a majority of the Registrable
Securities being sold or the managing underwriter or 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
Securities in each case to the same extent as if all the securities then being
offered were for the account of the Company;
(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any Selling Holder reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Selling Holder to
consummate the disposition in such jurisdictions of the
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Registrable Securities owned by such Selling Holder; provided that Issuer will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph (b),
(ii) subject itself to taxation or qualification in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction;
(f) notify each Selling Holder of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
promptly make available to each Selling Holder any such supplement or amendment;
(g) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(h) make available for inspection on a confidential basis by any
Selling Holder of such Registrable Securities, any underwriter participating in
any disposition pursuant to such registration statement, and any attorney,
accountant or other professional retained by any such Selling Holder or
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of Issuer and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause Issuer's and its
subsidiaries' officers, directors and employees to supply all information
reasonably requested by any such Inspector in connection with such registration
statement;
(i) in the event such sale is pursuant to an underwritten offering,
use its best efforts to obtain a comfort letter or comfort letters from Issuer's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters as the Selling Holders of a
majority in aggregate principal amount or number of shares, as the case may be,
of the Registrable Securities being sold or the managing underwriter reasonably
request and an opinion of outside counsel to Issuer covering such matters as are
customarily covered by such opinions;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its securityholders, as
soon as reasonably practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act; and
(k) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange on which the Common Stock of Issuer is
then listed.
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Issuer may require each Selling Holder of Registrable Securities as to
which any registration is being effected to furnish to Issuer such information
regarding the distribution of such Registrable Securities as Issuer may from
time to time reasonably request in writing and such other information as may be
legally required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from
Issuer of the happening of any event of the kind described in Section 5(c)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5(c) hereof, and, if
so directed by Issuer, such Selling Holder will deliver to Issuer (at Issuer's
expense) all copies, other than permanent file copies, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event Issuer shall give any such notice, Issuer shall extend the
period during which such registration statement shall be maintained effective
(including the period referred to in Section 2(b) hereof) by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5(c) hereof to and including the date when each Selling
Holder of Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by Section 5(c) hereof.
6. Registration Expenses
Except as provided in Section 2(b) hereof, all expenses incident to
Issuer's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchanges and fees and disbursements of counsel for
Issuer and its independent certified public accountants (including the expenses
of any special audit or comfort letters required by or incident to such
performance), securities acts liability insurance (if Issuer elects to obtain
such insurance) and the reasonable fees and expenses of any special experts
retained by Issuer in connection with such registration, fees and expenses of
other persons retained by Issuer (all such expenses being herein called
"Registration Expenses"), will be borne by Issuer. Registration Expenses shall
not include the fees and expenses of any counsel for the Holders, any
underwriting discounts, commissions, or similar charges attributable to the sale
of Registrable Securities or any other expenses of the Holders, all of which
shall be paid by the Holders.
7. Indemnification; Contribution
(a) Indemnification by Issuer. Issuer agrees to indemnify and hold
harmless each Selling Holder, its officers, directors, partners and agents and
each person, if any, who controls such Selling Holder within the meaning of
Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934, as
amended, from and against any and all losses, claims, damages (whether in
contract, tort or otherwise), liabilities and expenses (including reasonable
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costs of investigation) whatsoever (as incurred or suffered) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon 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 such
losses, claims, damages, liabilities or expenses arise out of, or are based
upon, any such untrue statement or omission or allegation thereof based upon
information furnished in writing to Issuer by such Selling Holder or on such
Selling Holder's behalf expressly for use therein. Issuer also agrees to
indemnify any underwriters of the Registrable Securities, their officers,
partners and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 7 or such other indemnification customarily
obtained by underwriters at the time of offering.
(b) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any Selling Holder (or its officers, directors, partners or
agents) or any person controlling any such Selling Holder in respect of which
indemnity may be sought from Issuer, Issuer shall, at its expense, assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Selling Holder. Such Selling Holder or any controlling person of such
Selling Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Selling Holder or such controlling
person unless (i) Issuer has agreed to pay such fees and expenses or (ii) the
named parties to any such action or proceeding (including any impleaded parties)
include both such Selling Holder or such controlling person and Issuer, and such
Selling Holder or such controlling person shall have been advised by counsel
that there may be one or more legal defenses available to such Selling Holder or
such controlling person which are different from or additional to those
available to Issuer (in which case, if such Selling Holder or such controlling
person notifies Issuer in writing that it elects to employ separate counsel at
the expense of Issuer, Issuer shall not have the right to assume the defense of
such action or proceeding on behalf of such Selling Holder or such controlling
person; it being understood, however, that Issuer shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all the Selling Holders and such controlling persons,
which firm shall be designated in writing by a majority of the Selling Holders).
Issuer shall not be liable for any settlement of any such action or proceeding
effected without Issuer's written consent, but if settled with its written
consent, or if there be a final judgment no longer subject to appeal for the
plaintiff in any such action or proceeding, Issuer agrees to indemnify and hold
harmless such Selling Holder and such controlling person from and against any
loss or liability (to the extent stated above) by reason of such settlement or
judgment.
(c) Indemnification by Holders of Registrable Securities. Each
Selling Holder agrees, severally but not jointly, to indemnify and hold harmless
Issuer, its directors and officers and each person, if any, who controls Issuer
within the meaning of either Section 15 of the Act
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or Section 20 of the Securities Exchange Act of 1934, as amended, to the same
extent as the foregoing indemnity from Issuer to such Selling Holder, but only
with respect to information furnished in writing by such Selling Holder or on
such Selling Holder's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against Issuer or its directors or officers, or any
such controlling person, in respect of which indemnity may be sought against
such Selling Holder, such Selling Holder shall have the rights and duties given
to Issuer, and Issuer or its directors or officers or such controlling person
shall have the rights and duties given to such Selling Holder, by the preceding
paragraph. Each Selling Holder also agrees to indemnify and hold harmless
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of Issuer provided in this Section 7.
(d) Contribution. If the indemnification provided for in this Section
7 is unavailable to Issuer, the Selling Holders or the underwriters in respect
of any losses, claims, damages, liabilities or judgments referred to herein,
then each such 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 and judgments (i) as
between Issuer and the Selling Holders on the one hand and the underwriters on
the other, in such proportion as is appropriate to reflect the relative benefits
received by Issuer and the Selling Holders on the one hand and the underwriters
on the other from the offering of the Registrable Securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of Issuer and the Selling Holders on the one hand and of the underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations and (ii) as between Issuer, on the one hand,
and each Selling Holder on the other, in such proportion as is appropriate to
reflect the relative fault of Issuer and of each Selling Holder in connection
with such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by Issuer and the Selling
Holders on the one hand and the underwriters on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by Issuer and the Selling Holders bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set forth in the table
on the cover page of the prospectus. The relative fault of Issuer and the
Selling Holders on the one hand and of the underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Issuer and the Selling
Holders or by the underwriters. The relative fault of Issuer on the one hand
and of each Selling Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by such party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
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Issuer and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered 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 Securities of such Selling Holder were
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 or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Selling Holder's obligation to contribute is
several in the proportion that the proceeds of the offering received by such
Selling Holder bears to the total proceeds of the offering, and not joint.
(e) Limitation of Liability. In no event shall any Selling Holder be
liable under this Section 7 or otherwise in respect of any offering for amounts
in excess of the net proceeds received by such Selling Holder from the sale of
Registrable Securities in such offering.
8. Participation in Underwritten Registrations
No person may participate in any underwritten registration hereunder
unless such person (a) agrees to sell such person's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement.
9. Rule 144.
Issuer covenants that it will file any reports required to be filed by
it under the Act and the Securities Exchange Act of 1934, as amended, and that
it will take such further action as any Holder may reasonably request, all to
the extent required from time to time to (i) maintain its eligibility to use
Form S-3 under the Act to register the Registrable Securities and (ii) enable
Holders to sell Registrable Securities without registration under the Act within
the limitation of the exemptions provided by (a) Rule 144 under the 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
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request of any Holder, Issuer will deliver to such Holder a written statement as
to whether it has complied with such requirements.
10. Transfer of Registration Rights
The registration rights provided to the Holders of the Registrable
Securities under Sections 2 and 3 hereof may be transferred in whole or in part
to any other person in connection with a transfer of all or any portion of
Registrable Securities that complies with the Act and any applicable state
securities or blue sky laws. Any such transferee of Registrable Securities who
is also a transferee of the registration rights provided under Sections 2 and 3
hereof shall be a Holder of Registrable Securities within the meaning of this
Agreement and shall have the rights as such hereunder.
11. Miscellaneous
(a) Binding Effect. Unless 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, transferees,
successors and assigns.
(b) Amendment. This Agreement may be amended or terminated only by a
written instrument signed by Issuer and the holders of a majority of the
Registrable Securities.
(c) Applicable Law. The internal laws of the State of Texas shall
govern the interpretation, validity and performance of the terms of this
Agreement.
(d) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered personally or when received
if sent by registered or certified mail, return receipt requested, or by
facsimile transmission to the parties at the following addresses (or at such
other address as a party may specify by like notice):
(i) If to Powell Resources, Inc.:
----------------------------
Powell Resources, Inc.
3030 Northwest Expressway, Suite 1602
Oklahoma City, Oklahoma 73112
Attention: Mr. V. Lee Powell
Telephone No.: (405) 943-4581
Facsimile No.: (405) 943-4584
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(ii) If to any other Seller:
----------------------
c/o Thomas O. Goldsworthy
Fremont Exploration, Inc.
3030 Northwest Expressway, Suite 1602
Oklahoma City, Oklahoma 73112
Telephone No.: (405) 943-4581
Facsimile No.: (405) 943-4584
(iii) If to Amerac Energy Corporation:
-------------------------------
Amerac Energy Corporation
700 Louisiana, Suite 3330
Houston, Texas 77002-2730
Attention: Mr. Jeffrey B. Robinson
Telephone No.: (713) 223-1833
Facsimile No.: (713) 223-5110
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one instrument.
(f) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
AMERAC ENERGY CORPORATION
By: /s/ Jeffrey B. Robinson
----------------------------------------
Jeffrey B. Robinson
President and Chief Executive Officer
POWELL RESOURCES, INC.
By: /s/ V. Lee Powell
----------------------------------------
V. Lee Powell
President
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THE LANGSTROTH FAMILY LIMITED I
By: /s/ Thomas O. Goldsworthy
----------------------------------------
Thomas O. Goldsworthy
Attorney-in-Fact
/s/ THOMAS O. GOLDSWORTHY
----------------------------------------
THOMAS O. GOLDSWORTHY
JAMES B. TOLLERTON
By: /s/ Thomas O. Goldsworthy
----------------------------------------
Thomas O. Goldsworthy
Attorney-in-Fact
13