EXHIBIT 2.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of May 2,
1996, is between PATINA OIL & GAS CORPORATION, a Delaware corporation (the
"Company"), and the undersigned stockholder (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company, the Holder, Patina Merger Corporation, a Delaware
corporation, and Gerrity Oil & Gas Corporation, a Delaware corporation, have
entered into that certain Amended and Restated Agreement and Plan of Merger
dated as of January 16, 1996 and amended and restated as of March 20, 1996 (the
"Merger Agreement").
WHEREAS, pursuant to the Merger Agreement, after the Effective Time (as
that term is defined in the Merger Agreement) the Holder will own a substantial
number of shares of common stock, par value $.01 per share (the "Common Stock"),
of the Company, as well as a substantial number of shares of Series A Common
Stock, par value $.01 per share (the "Series A Common Stock"), which is
convertible under certain circumstances into Common Stock; and
WHEREAS, the Common Stock will be registered under Section 12 of the
Securities and Exchange Act of 1934 (the "Exchange Act"); and
WHEREAS, under the provisions of the Securities Act of 1933 (the
"Securities Act") and the General Rules and Regulations promulgated by the
Securities and Exchange Commission (the "SEC") thereunder, the Holder is or may
be limited in the manner of selling the shares of Common Stock owned by the
Holder, absent registration under the Securities Act of the sale of such shares
or the availability of another exemption from the registration requirements of
the Securities Act; and
WHEREAS, the Company desires to establish certain other restrictions on the
sale of the shares of Common Stock owned by the Holder, and the Company and the
Holder desire to set forth certain registration rights as to such shares;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties hereto hereby agree as follows:
1. Agreement Not to Sell or Transfer Restricted Stock For A Period of Time.
The Holder agrees that it will not offer, sell, contract to sell or otherwise
dispose of any shares of Common Stock or any security convertible into or
exchangeable for Common Stock for a period of 180 days after the Effective Time;
provided, however, that the foregoing shall not restrict any offers, sales,
contracts to sell or other dispositions to any affilate of the Holder.
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2. Demand Registration.
(A) Request for Registration. As used in this Agreement, "Restricted
Stock" shall mean all shares of Common Stock owned by the Holder at the
Effective Time, together with any securities issued or issuable with
respect to any such Common Stock by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, or upon conversion of Series A
Common Stock owned by the Holder at the Effective Time, or otherwise. As to
any particular shares of Restricted Stock, such securities shall cease to
be Restricted Stock when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, (b) such securities shall have been distributed to
the public pursuant to Rule 144 (or any successor provision) under the
Securities Act (provided that if all Restricted Stock is then eligible for
sale pursuant to Rule 144, then all such Restricted Stock shall cease to be
Restricted Stock), (c) such securities shall have been otherwise
transferred, new certificates representing such securities not bearing a
legend restricting transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any similar
state law then in force, (d) such securities shall have ceased to be
outstanding, or (e) the Holder or Holders thereof shall agree in writing
that such Restricted Stock shall no longer be Restricted Stock (the Holder
and any permitted assignee of the Holder's rights and duties hereunder are
referred to herein as the "Holders" or individually as a "Holder"). Subject
to the conditions and limitations set forth in Section 5 of this Agreement,
at any time after the limitation period referred to in Section 1, the
Holder or Holders of Restricted Stock holding in the aggregate 5% in number
of shares of the Restricted Stock then outstanding may make a written
request for registration under the Securities Act of all or part of its or
their Restricted Stock pursuant to this Section 2 (a "Demand
Registration"), provided that the number of shares of Restricted Stock
proposed to be sold shall be at least 5% of the aggregate number of shares
of Restricted Stock then outstanding, but in no event less than 500,000
shares of Restricted Stock (subject to appropriate adjustment for any stock
dividend, stock split, combination, recapitalization, merger,
consolidation, reorganization or similar occurrence). Such request will
specify the aggregate number of shares of Restricted Stock proposed to be
sold and will also specify the intended method of disposition thereof.
Within ten days after receipt of such request, the Company will give
written notice of such registration request to all other Holders of
Restricted Stock and include in such registration all Restricted Stock with
regard to which the Company has received written requests for inclusion
therein within fifteen business days after the receipt by the applicable
Holders of the Company's notice. Each such request will also specify the
aggregate number of shares of Restricted Stock to be registered and the
intended method of disposition thereof. No other party, including the
Company (but excluding other Holders of Restricted Stock), shall be
permitted to offer securities under any such Demand Registration unless the
Holder or Holders requesting the Demand Registration shall consent in
writing.
(B) Priority on Demand Registrations. If the Holders of a majority in
number of shares of the Restricted Stock to be registered in a Demand
Registration so elect, the offering of such Restricted Stock pursuant to
such Demand Registration shall be in the form of an
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underwritten offering. In such event, if the managing underwriter or
underwriters of such offering advise the Company and the Holders in writing
that in their opinion the aggregate amount of Restricted Stock requested to
be included in such offering is so large that it will materially and
adversely affect the success of such offering, the Company will include in
such registration the aggregate number of shares of Restricted Stock that
in the opinion of such managing underwriter or underwriters can be sold
without any such material adverse effect, and such number of shares shall
be allocated pro rata among the Holders of Restricted Stock on the basis of
the number of shares of Restricted Stock requested to be included in such
registration by the Holders. To the extent shares of Restricted Stock so
requested to be registered are excluded from such offering, then a Holder
of such Restricted Stock shall have the right to one additional Demand
Registration under this Section with respect to such Restricted Stock,
provided that the failure of such Restricted Stock to be registered is
through no fault of such Holder.
(c) Selection of Underwriters and Counsel. If any Demand Registration
is in the form of an underwritten offering, the Holders of a majority in
number of the shares of Restricted Stock to be registered will select and
obtain the services of the investment banker or investment bankers and
manager or managers that will administer the offering and the counsel to
such investment bankers and managers; provided that such investment
bankers, managers and counsel must be approved by the Company, which
approval shall not be unreasonably withheld.
3. Piggyback Registration. If the Company proposes to file a registration
statement under the Securities Act with respect to an offering for its own
account of any class of its equity securities (other than a registration
statement on Form S-8 (or any successor form) or any other registration
statement relating solely to director and/or employee benefit plans or filed in
connection with an exchange offer, a transaction to which Rule 145 (or any
successor rule) under the Securities Act applies or an offering of securities
solely to the Company's existing stockholders) (each, an "Excluded Registration
Statement"), then the Company shall in each case give written notice of such
proposed filing to the Holders of Restricted Stock as soon as practicable (but
no later than five business days) before the anticipated filing date, and such
notice shall offer such Holders the opportunity to register such number of
shares of Restricted Stock as each such Holder may request. Each Holder of
Restricted Stock desiring to have such holder's Restricted Stock included in
such registration statement shall so advise the Company in writing within five
business days after the date of the Company's notice, setting forth the amount
of such Holder's Restricted Stock for which registration is requested. If the
Company's offering is to be an underwritten offering, the Company shall, subject
to the further provisions of this Agreement, use its reasonable efforts to cause
the managing underwriter or underwriters of a proposed underwritten offering to
permit the Holders of the Restricted Stock requested to be included in the
registration for such offering to include such securities in such offering on
the same terms and conditions as any similar securities of the Company included
therein. Moreover, if the registration of which the Company gives notice
involves an underwriting, the right of each Holder to registration pursuant to
this Section 3 shall, unless the Company otherwise agrees, be conditioned upon
such Holder's participation as a seller in such underwriting and its execution
of an underwriting agreement with the managing underwriter or underwriters
selected by the Company. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering deliver a written opinion to the
Holders of Restricted Stock that
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either because of (A) the kind of securities that the Holders, the Company and
any other person or entities intend to include in such offering or (B) the size
of the offering that the Holders, the Company and other persons intend to make,
the success of the offering would be materially and adversely affected by
inclusion of the Restricted Stock requested to be included, then (i) in the
event that the size of the offering is the basis of such managing underwriter's
opinion, the number of shares to be offered for the accounts of Holders of
Restricted Stock shall be reduced pro rata 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 as
well as the Company, such reduction shall not represent a greater fraction of
the number or kind of securities intended to be offered by Holders of Restricted
Stock than the fraction of similar reductions imposed on such other persons or
entities over the amount of securities of such kind they intended to offer; and
(ii) in the event that the combination of securities to be offered is the basis
of such managing underwriter's opinion, (x) the Restricted Stock to be included
in such offering shall be reduced as described in clause (i) above (subject to
the proviso in clause (i) ) or, (y) if the actions described in clause (x)
would, in the judgment of the managing underwriter, be insufficient to
substantially eliminate the adverse effect that inclusion of the Restricted
Stock requested to be included would have on such offering, such Restricted
Stock will be excluded from such offering. Any Restricted Stock excluded from an
underwriting shall be withdrawn from registration and shall not, without the
consent of the Company and the manager of the underwriting, be transferred in a
public distribution prior to the earlier of 90 days (or such other shorter
period of time as the manager of the underwriting may require) after the
effective date of the registration statement or 120 days after the date the
Holders of such Restricted Stock are notified of such exclusion.
4. Registration Procedures. Whenever, pursuant to Section 2 or 3, any of
the Holders of Restricted Stock has requested that any Restricted Stock be
registered, the Company will, subject to the provisions of Section 5, use
reasonable best efforts to effect the registration and the sale of such
Restricted Stock in accordance with the intended method of disposition thereof
as promptly as practicable, and in connection with any such request, the Company
will:
(A) in connection with a request pursuant to Section 2, prepare and
file with the SEC, not later than 60 days after receipt of a request to
file a registration statement with respect to Restricted Stock, a
registration statement on any form for which the Company then qualifies and
which counsel for the Company shall deem appropriate and which form shall
be available for the sale of such Restricted Stock in accordance with the
intended method of distribution thereof, and use its reasonable best
efforts to cause such registration statement to become effective; provided
that if the Company shall furnish to the Holders making such a request a
certificate signed by either the chief financial officer or the chief
accounting officer of the Company stating that in such officer's good faith
judgment it would be significantly disadvantageous to the Company for such
a registration statement to be filed on or before the date filing would be
required (including without limitation the required disclosure of material
non-public information prior to the time that it would otherwise be
required by applicable law or securities exchange regulation to be
disclosed), the Company shall have an additional period of not more than 90
days within which to file such registration statement and provided further
(i) that, before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to one counsel
selected by the Holders of a
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majority in number of shares of the Restricted Stock 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, and (ii)
that after the filing of the registration statement, the Company will
promptly notify each of the selling Holders of Restricted Stock of any stop
order issued or, to the knowledge of the Company, threatened by the SEC and
take all reasonable actions to prevent the entry of such stop order or to
remove it if entered;
(B) in connection with a registration pursuant to Section 2, prepare
and file with the SEC 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 for a period of not
less than 180 days or such shorter period as shall terminate when all
shares of Restricted Stock covered by such registration statement have been
sold (but not before the expiration of the 90-day period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable),
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
selling Holders thereof set forth in such registration statement;
(C) as soon as reasonably practicable, furnish to each of the selling
Holders, prior to filing a registration statement, copies of such
registration statement as proposed to be filed, and thereafter furnish to
such selling Holders such number of copies of such registration statement,
each amendment and supplement thereto (in each case, if specified by such
Holder, including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as a selling Holder may reasonably request in order to
facilitate the disposition of the Restricted Stock owned by such selling
Holder;
(D) with reasonable promptness, use its reasonable best efforts to
register or qualify (or cause to be registered or qualified) such
Restricted Stock under such other securities or blue sky laws of such
jurisdictions within the United States as any selling Holder (or managing
underwriter in the case of an underwritten offering) reasonably (in light
of such selling Holder's or managing underwriter's intended plan of
distribution) requests and do any and all other acts and things that may be
reasonably necessary or advisable to enable such selling Holder to
consummate the disposition in such jurisdictions of the Restricted Stock
owned by such selling Holder; provided that the Company 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 subsection (D),
(ii) subject itself to taxation in any such jurisdiction or (iii) consent
to general service of process in any such jurisdiction;
(E) with reasonable promptness, use its reasonable best efforts to
cause the Restricted Stock covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of
the Company to enable the selling Holder or Holders thereof to consummate
the disposition of such Restricted Stock;
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(F) promptly notify each selling Holder of such Restricted Stock, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of any event known to the
Company requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Restricted Stock, 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) in connection with a request pursuant to Section 2, enter into an
underwriting agreement in customary form, the form and substance of such
underwriting agreement being subject to the reasonable satisfaction of the
Company;
(H) with reasonable promptness make available for inspection by any
selling Holder, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant or other agent
retained by any such selling Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as
well as access at reasonable times to the Company's executive officers, key
employees, independent accountants and independent reserve engineers as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers and employees to
supply all information reasonably requested for such purpose by any such
Inspector in connection with such registration statement; provided,
however, that the selection of any Inspector other than a selling Holder
shall be subject to the consent of the Company, which shall not be
unreasonably withheld. Each Inspector that actually reviews Records
supplied by the Company that include information that the Company
determines, in good faith, to be confidential ("Confidential Information")
shall be required, prior to any such review, to execute an agreement with
the Company providing that such Inspector shall not disclose any
Confidential Information unless such disclosure is required by applicable
law or legal process. Each selling Holder of Restricted Stock agrees that
Confidential Information obtained by it as a result of such inspections
shall not be used by it as the basis for any transactions in securities of
the Company unless and until such information is made generally available
to the public. Each selling Holder of Restricted Stock further agrees that
it will, upon learning that disclosure of Confidential Information is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of the Confidential Information. Each selling Holder
also agrees that the due diligence investigation made by the Inspectors
shall be conducted in a manner that will not unreasonably disrupt the
operations of the Company or the work performed by the Company's officers
and employees;
(I) in the event such sale is pursuant to an underwritten offering,
use its reasonable best efforts to obtain a comfort letter or letters from
the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by comfort letters as the
managing underwriter reasonably requests;
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(J) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of twelve months, beginning within two months after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act; and
(K) with reasonable promptness, use its reasonable best efforts to
cause all such Restricted Stock to be listed on each securities exchange on
which the Common Stock of the Company is then listed, provided that the
applicable listing requirements are satisfied.
Each selling Holder of Restricted Stock agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection (F) hereof, such selling Holder will forthwith discontinue
disposition of Restricted Stock pursuant to the registration statement covering
such Restricted Stock until such selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection (F) hereof, and,
if so directed by the Company, such selling Holder will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such selling Holder's possession, of the prospectus covering such Restricted
Stock current at the time of receipt of such notice. In the event the Company
shall give any such notice, the Company shall extend the period during which
such registration statement shall be maintained effective pursuant to this
Agreement (including the period referred to in subsection (B)) by the number of
days during the period from and including the date of the giving of such notice
pursuant to subsection (F) hereof to and including the date when each selling
Holder of Restricted Stock covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
subsection (F) hereof. Each selling Holder also agrees to notify the Company if
any event relating to such selling Holder occurs that would require the
preparation of a supplement or amendment to the prospectus so that such
prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
5. Conditions and Limitations.
(A) The Company's obligations under Section 2 shall be subject to the
following limitations:
(i) the Company need not file a registration statement either (x)
during the period starting with the date 60 days prior to the
Company's estimated date of filing of, and ending 90 days after the
effective date of, any registration statement pertaining to securities
of the Company (other than an Excluded Registration Statement),
provided that if such Company registration statement is not filed
within 90 days after the first date on which the Company notifies a
Holder of Restricted Stock that it will delay a Demand Registration
pursuant to this clause (x), the Company may not further postpone such
Demand Registration pursuant to this clause; or (y) during the period
specified in the first proviso of subsection (A) of Section 4;
(ii) the Company shall not be required to furnish any audited
financial statements other than those audited statements customarily
prepared at the end of its
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fiscal year, or to furnish any unaudited financial information with
respect to any period other than its regularly reported interim
quarterly periods unless in the absence of such other unaudited
financial information the registration statement would contain an
untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iii) except as provided in Section 2(B), the Company shall not
be required to file more than two Demand Registrations. A registration
statement will not count as a Demand Registration until it has become
effective; and
(iv) the Company shall have received the information and
documents specified in Section 6 and each selling Holder shall have
observed or performed its other covenants and conditions contained in
such section.
(B) The Company's obligation under Section 3 shall be subject to the
limitations and conditions specified in such section and in clauses (i),
(ii) and (iv) of subsection (A) of this Section 5, and to the condition
that the Company may at any time terminate its proposal to register its
shares and discontinue its efforts to cause a registration statement to
become or remain effective.
6. Information from and Certain Covenants of Holders of Restricted Stock.
The Holders for whom Restricted Stock are to be registered pursuant to this
Agreement shall provide to the Company such information regarding the Restricted
Stock to be so registered, the Holder and the intended method of disposition of
such Restricted Stock as shall reasonably be required in connection with the
action to be taken. Any Holder whose Restricted Stock is included in a
registration statement pursuant to this Agreement shall execute all consents,
powers of attorney, registration statements and other documents reasonably
required to be signed by it in order to cause such registration statement to
become effective. Each selling Holder covenants that, in disposing of such
Holder's shares, such Holder will comply with Rules l0b-2, l0b-6 and l0b-7 of
the SEC adopted pursuant to the Exchange Act.
7. Registration Expenses. All Registration Expenses (as defined herein)
will be borne by the Company. Underwriting discounts and commissions applicable
to the sale of Restricted Stock shall be borne by each selling Holder of the
Restricted Stock to which such discount or commission relates, and each selling
Holder shall be responsible for the fees and expenses of any legal counsel,
accountants or other agents retained by such selling Holder and all other
out-of-pocket expenses incurred by such selling Holder in connection with any
registration under this Agreement.
As used herein, the term Registration Expenses means all expenses incident
to the Company's performance of or compliance with this Agreement (whether or
not the registration in connection with which such expenses are incurred
ultimately becomes effective), 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 Restricted Stock), rating agency fees, printing
expenses, messenger and delivery expenses incurred by the Company, internal
expenses incurred by the Company (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the fees and
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expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed, and fees and disbursements of counsel for the Company
and its independent certified public accountants (including the expenses of any
comfort letters required by or incident to such performance), securities acts
liability insurance (if the Company elects to obtain such insurance), the
reasonable fees and expenses of any special experts retained by the Company and
the fees and expenses of other persons retained by the Company in connection
with such registration.
8. Indemnification; Contribution.
(A) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each selling Holder of Restricted Stock, its officers,
directors and agents and each person, if any, who controls such selling
Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) 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 Restricted Stock or in any amendment or
supplement thereto or in any preliminary prospectus relating to the
Restricted Stock, 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 the Company by such selling
Holder or on such selling Holder's behalf expressly for use therein and
provided further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus,
the indemnity agreement contained in this subsection shall not apply to the
extent that any such loss, claim, damage, liability or expense results from
the fact that a copy of the final prospectus was not sent or given to the
person asserting any such losses, claims, damages, liabilities or expenses
at or prior to the written confirmation of the sale of the Restricted Stock
concerned to such person if a final prospectus is made available by the
Company on a timely basis. The Company also agrees to include in any
underwriting agreement with any underwriters of the Restricted Stock
provisions indemnifying and providing for contribution to such
underwriters, their officers and directors and each person who controls
such underwriters on substantially the same basis as the provisions of this
Section 8 indemnifying and providing for contribution to the selling
Holders.
(B) Indemnification by Holders of Restricted Stock. Each selling
Holder agrees to indemnify and hold harmless the Company, its officers,
directors and agents and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation)
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 Restricted Stock or in any amendment or
supplement thereto or in any preliminary prospectus relating to the
Restricted Stock, 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
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misleading, provided (i) that 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 the Company by such selling Holder or on such selling Holder's behalf
expressly for use therein, (ii) that with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this subsection shall not
apply to the extent that any such loss, claim, damage, liability or expense
results from the fact that a copy of the final prospectus was not sent or
given to the person asserting any such losses, claims, damages, liabilities
or expenses at or prior to the written confirmation of the sale of the
Restricted Stock concerned to such person, and (iii) that no selling Holder
shall be liable for any indemnification under this Section 8 in an
aggregate amount that exceeds the total net proceeds (before deducting
expenses other than underwriting discounts or commissions) received by such
selling Holder from the offering. Each selling Holder also agrees to
include in any underwriting agreement with underwriters of the Restricted
Stock provisions indemnifying and providing for contribution to such
underwriters, their officers and directors, and each person who controls
such underwriters, on substantially the same basis as the provisions of
this Section 8 indemnifying and providing for contribution to the Company.
(C) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any indemnified party hereunder in respect of which
indemnity may be sought from an indemnifying party, the indemnifying party
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party, and shall assume the
payment of all expenses. Such indemnified party 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 indemnified party unless (i) the indemnifying party has
agreed to pay such fees and expenses or (ii) the indemnifying party shall
have failed to assume the defense of such action or proceeding and employ
counsel reasonably satisfactory to such indemnified party, or (iii) the
named parties to any such action or proceeding (including any impleaded
parties) include both such indemnified party and such indemnifying party,
and such indemnified party shall have been advised by counsel in writing
that there may be one or more legal defenses available to such indemnified
party that are different from or additional to those available to the
indemnifying party (in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel
reasonably acceptable to the indemnifying party at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action or proceeding on behalf of such
indemnified party, it being understood, however, that the indemnifying
party 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 such indemnified party, which firm shall be designated in writing
by such indemnified party). The indemnifying party shall not be liable for
any settlement of any such action or proceeding effected without its
written consent, but if settled with its written consent, or if there is a
final judgment for the plaintiff in any such action or proceeding, the
indemnifying party agrees to
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indemnify and hold harmless such indemnified party from and against any
loss or liability (to the extent stated above) by reason of such settlement
or judgment.
(D) Contribution. If the indemnification provided for in this Section
8 is unavailable to the Company or the selling Holders in respect of any
losses, claims, damages, liabilities or judgments referred to therein, 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, in such proportion as is appropriate to reflect the relative
fault of each such party in connection with such statements or omissions,
as well as any other relevant equitable considerations. The relative fault
of each such party 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.
The Company and the Holders 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. 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
investigation or defending any such action or claim. Notwithstanding the
provisions of this Section 8(D), no selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at
which the Restricted Stock 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 Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
9. Amendments. This Agreement may be amended or modified upon the written
consent thereto of the Company and the Holders of a majority of the Restricted
Stock.
10. Assignments. This Agreement shall be binding on and inure to the
benefit of the respective successors and assigns of the parties hereto.
11. Entire Agreement; Governing Law. This Agreement constitutes the entire
agreement of the parties relating to the subject matter hereof and all prior or
contemporaneous written or oral agreements are merged herein. This Agreement
shall be governed by the laws of the State of Delaware.
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12. Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by either party to the other (herein collectively
called "Notice") shall be in writing and delivered personally or mailed, postage
prepaid, or by telegram or telecopier, as follows:
If to the Holder:
Snyder Oil Corporation
777 Main Street, Suite 2500
Fort Worth, Texas 76012
Attention: General Counsel
Telecopy No.: (817) 882-5982
If to the Company:
Patina Oil & Gas Corporation
1625 Broadway
Denver, Colorado 80202
Attention: Rodney L. Waller
Telecopy No.: (303) 592-8600
Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective upon actual
receipt if received during the recipient's normal business hours, or at the
beginning of the recipient's next business day after receipt if not received
during the recipient's normal business hours. Any party or Holder may change any
address to which Notice is to be given to it by giving Notice as provided above
of such change of address.
IN WITNESS WHEREOF, the Company and the Holder have caused this Agreement
to be signed by their respective officers thereunto duly authorized.
PATINA OIL & GAS CORPORATION
By: /s/ Rodney Waller
Rodney Waller
Vice President
SNYDER OIL CORPORATION
By: /s/ Thomas J. Edelman
Thomas J. Edelman
President
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