<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
PRIZE ENERGY CORP.
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(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
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(Title of Class of Securities)
74267L106
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(CUSIP Number)
LON C. KILE
3500 WILLIAM D. TATE
SUITE 200
GRAPEVINE, TEXAS 76051
(817) 424-0406
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
- with copies to -
ROBERT A. CURRY
CONNER & WINTERS
A PROFESSIONAL CORPORATION
3700 FIRST PLACE TOWER
15 E. 5TH STREET
TULSA, OKLAHOMA 74103-4344
(918) 586-5711
FEBRUARY 8, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box [ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 74267L106 PAGE 2
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
LON C. KILE
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
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7 SOLE VOTING POWER
NUMBER OF
577,618
SHARES ------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
-0-
OWNED BY ------------------------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
577,618
REPORTING ------------------------------------------------------
10 SHARED DISPOSITIVE POWER
PERSON
-0-
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
577,618
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.2%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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<PAGE> 3
SCHEDULE 13D
CUSIP NO. 74267L106 PAGE 3
The information contained in this Schedule 13D is as of the date
hereof, unless otherwise expressly provided herein.
ITEM 1. SECURITY AND ISSUER
The class of equity securities to which this statement on Schedule 13D
relates is the common stock, par value $.01 per share (the "Common Stock"), of
Prize Energy Corp. (formerly known as Vista Energy Resources, Inc.), a Delaware
corporation (the "Company"). The address of the Company's principal executive
offices is 3500 William D. Tate, Suite 200, Grapevine, Texas 76051.
ITEM 2. IDENTITY AND BACKGROUND
(a) This Schedule 13D is being filed by Lon C. Kile, who is sometimes
referred to herein as the "Reporting Person."
(b) The principal business address of the Reporting Person is 3500
William D. Tate, Suite 200, Grapevine, Texas 76051.
(c) The Reporting Person is the President and Chief Operating Officer
of the Company, which is an independent oil and gas company focused on the
acquisition, enhancement and exploitation of producing oil and gas properties.
The principal address of the Company is set forth in Item 1 above.
(d) and (e) The Reporting Person has not, during the last five years,
been (i) convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which he was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
On February 8, 2000, a wholly-owned subsidiary of the Company was
merged (the "Merger") with and into Prize Natural Resources, Inc. (formerly
known as Prize Energy Corp.), a Delaware corporation ("Old Prize"), pursuant to
an Agreement and Plan of Merger dated October 8, 1999, among the Company, Old
Prize and such subsidiary (the "Merger Agreement").
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 74267L106 PAGE 4
As a result of the Merger, Old Prize became a wholly-owned subsidiary
of the Company and the stockholders of Old Prize received shares of stock in the
Company constituting 84% of the voting shares of the Company. The Reporting
Person was the President and Chief Operating Officer and a stockholder of Old
Prize at the time of the Merger.
The issuance of shares of Company stock in the Merger was registered
under the Securities Act of 1933, as amended (the "Securities Act"), on a
Registration Statement on Form S-4 (file number 333-92561) which became
effective on January 13, 2000.
At the time of the Merger, the Reporting Person was also the holder of
employee stock options of Old Prize under which the Reporting Person had the
right to purchase shares of common stock in Old Prize. Pursuant to the Merger
Agreement, these options and the option plan under which they were issued were
assumed and adopted by the Company. Accordingly, the Reporting Person's right to
purchase shares of common stock in Old Prize was converted into the right to
purchase shares of the Common Stock.
ITEM 4. PURPOSE OF THE TRANSACTION
The principal purpose of the transaction was to effect a combination of
the assets, properties and businesses of the Company and Old Prize.
The Reporting Person has no present plans, proposals or intention which
relate to or would result in (a) the acquisition by any person of additional
securities of the Company (other than in connection with stock option plans or
other employee benefit plans of the Company), or the disposition of securities
of the Company; (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries; (d) any change in the present board of directors or management
of the Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board (except that the board
will be expanded to include two or three "independent directors" in order to
satisfy requirements of the Securities and Exchange Commission and the American
Stock Exchange); (e) any material change in the present capitalization or
dividend policy of the Company; (f) any other material change to the Company's
business or corporate structure (other than the possible consolidation or other
reorganization of the Company's subsidiaries); (g) changes in the Company's
charter or bylaws or other actions which may impede the acquisition of control
of the Company by any person; (h) the Common Stock or any other class of
securities of the Company to be delisted from the American Stock Exchange; (i)
the Common Stock or any other class of equity securities of the Company becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934, as amended; or (j) any action similar to any of
those enumerated above.
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 74267L106 PAGE 5
As described in Item 6 below, the Reporting Person is party to a Voting
and Shareholders Agreement relating to the voting and disposition of shares of
Common Stock. The Reporting Person is not under any obligation to increase or
decrease his holdings of Common Stock. Depending upon future developments, the
Reporting Person may, in his discretion, develop plans at any time or from time
to time which could relate to or result in one or more of the actions or events
described above. The Reporting Person reserves the right to act with respect to
his holdings as he deems in his own best interest.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) and (b) The Reporting Person is the beneficial owner of 577,618
shares of the Common Stock (the "Shares"), which represent 5.2% of the
outstanding shares of the Common Stock. The Reporting Person has the sole power
to vote and dispose of the Shares. Of the Shares: (i) 41,916 are held by the
Reporting Person in his individual capacity; and (ii) 535,702 are issuable upon
exercise of stock options which are currently exercisable at an exercise price
of $7.84 per share.
(c) Except for the Merger and the acquisition of the Shares therein,
the Reporting Person has not effected any transactions in the Common Stock
during the past 60 days, except that the Reporting Person purchased 285 shares
of Common Stock on or about December 20, 1999.
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
Shares.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
The Reporting Person is a party to a Voting and Shareholders Agreement
dated February 8, 2000, among the Company and the holders of a majority of the
voting securities of the Company (including all of the former stockholders of
Old Prize), under which the Shares are subject to certain covenants as to the
voting and disposition of the Shares (the "Shareholders Agreement").
The parties to the Shareholders Agreement have agreed to vote their
shares of Common Stock for the election of: (i) one director designated by
management of the Company; (ii) three directors designated by Natural Gas
Partners V, L.P. ("NGP V"); and (iii) two directors designated by Pioneer
Natural Resources USA, Inc. ("Pioneer"). However, on the date on which Pioneer
no longer owns at least 60% of the shares of the Company's convertible preferred
stock initially issued to it in the Merger, or the equivalent number of shares
of the Common Stock obtained upon conversion, Pioneer shall have the right to
designate only one director and NGP V shall have the right to designate four
directors.
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SCHEDULE 13D
CUSIP NO. 74267L106 PAGE 6
The provisions of the Shareholders Agreement regarding election of
directors terminate on the earlier to occur of June 29, 2009, or the date on
which Pioneer no longer owns shares of the Common Stock and shares of the
Company's convertible preferred stock that constitute, on an as converted basis,
at least 16.7% of the Common Stock outstanding.
In addition, under the Shareholders Agreement, the Reporting Person may
not transfer any of the Shares unless all of the other parties to the
Shareholders Agreement have the opportunity to transfer a pro rata portion of
their shares of Common Stock on the same terms. Reference is made to the full
text of the Shareholders Agreement which is filed as an exhibit to this Schedule
13D and incorporated herein.
The Reporting Person is also a party to an Amended and Restated
Registration Rights Agreement dated February 8, 2000, among the Company and the
holders of a majority of the voting securities of the Company (including all of
the former stockholders of Old Prize), under which the Reporting Person has
certain rights with respect to the registration of the Shares under the
Securities Act. Reference is made to the full text of the Amended and Restated
Registration Rights Agreement which is filed as an exhibit to this Schedule 13D
and incorporated herein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit A - Agreement and Plan of Merger dated October 8, 1999, among Vista
Energy Resources, Inc. (now named Prize Energy Corp.), Prize
Energy Corp. (now named Prize Natural Resources, Inc.) and PEC
Acquisition Corp.*
Exhibit B - Voting and Shareholders Agreement dated as of February 8, 2000,
among Prize Energy Corp. (formerly known as Vista Energy
Resources, Inc.) and all of the former stockholders of Prize
Natural Resources, Inc. (formerly known as Prize Energy Corp.),
including Lon C. Kile.
Exhibit C - Amended and Restated Registration Rights Agreement dated as of
February 8, 2000, among Prize Energy Corp. (formerly known as
Vista Energy Resources, Inc.), all of the former stockholders of
Prize Natural Resources, Inc. (formerly known as Prize Energy
Corp.), including Lon C. Kile, and certain other stockholders of
Prize Energy Corp.
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* Included in the Registration Statement on Form S-4, as amended (File No.
333-92561), of Vista Energy Resources, Inc. (now named Prize Energy
Corp.), initially filed on December 10, 1999, and incorporated herein by
reference.
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SCHEDULE 13D
CUSIP NO. 74267L106 PAGE 7
SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: February 17, 2000 /s/ Lon C. Kile
------------------------------
Lon C. Kile
<PAGE> 8
SCHEDULE 13D
CUSIP NO. 74267L106
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
Exhibit A - Agreement and Plan of Merger dated October 8, 1999, among Vista
Energy Resources, Inc. (now named Prize Energy Corp.), Prize
Energy Corp. (now named Prize Natural Resources, Inc.) and PEC
Acquisition Corp.*
Exhibit B - Voting and Shareholders Agreement dated as of February 8, 2000,
among Prize Energy Corp. (formerly known as Vista Energy
Resources, Inc.) and all of the former stockholders of Prize
Natural Resources, Inc. (formerly known as Prize Energy Corp.),
including Lon C. Kile.
Exhibit C - Amended and Restated Registration Rights Agreement dated as of
February 8, 2000, among Prize Energy Corp. (formerly known as
Vista Energy Resources, Inc.), all of the former stockholders of
Prize Natural Resources, Inc. (formerly known as Prize Energy
Corp.), including Lon C. Kile, and certain other stockholders of
Prize Energy Corp.
</TABLE>
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* Included in the Registration Statement on Form S-4, as amended (File No.
333-92561), of Vista Energy Resources, Inc. (now named Prize Energy
Corp.), initially filed on December 10, 1999, and incorporated herein by
reference.
<PAGE> 1
EXHIBIT B
VOTING AND SHAREHOLDERS AGREEMENT
This VOTING AND SHAREHOLDERS AGREEMENT (this "AGREEMENT"), is made and
entered into as of the 8th day of February, 2000, by and among Prize Energy
Corp. (formerly known as Vista Energy Resources, Inc.), a Delaware corporation
(the "COMPANY"); Prize Natural Resources, Inc. (formerly known as Prize Energy
Corp.), a Delaware corporation ("OLD PRIZE"); the individuals and trusts listed
as Management Owners on the execution pages hereof (the "MANAGEMENT OWNERS");
the individuals listed as Employee Owners on the execution pages hereof
(including any additional persons who are employed by the Company and
subsequently become parties to this Agreement, the "EMPLOYEE OWNERS"); the
individuals and trusts listed as Other Owners on the execution pages hereof (the
"OTHER OWNERS"); Natural Gas Partners II, L.P., a Delaware limited partnership
("NGP II"), Natural Gas Partners III, L.P., a Delaware limited partnership ("NGP
III"), and Natural Gas Partners V, L.P., a Delaware limited partnership ("NGP V"
and, together with NGP II and NGP III, "NGP"); and Pioneer Natural Resources
USA, Inc., a Delaware corporation ("PIONEER").
W I T N E S S E T H:
WHEREAS, Old Prize and certain of the Owners (as defined in Section 3
of this Agreement) entered into an Amended and Restated Voting and Shareholders
Agreement dated as of June 29, 1999 (the "PRIZE AGREEMENT"); and
WHEREAS, Old Prize, the Company and a newly-formed wholly-owned
subsidiary of the Company ("MERGER SUB") entered into an Agreement and Plan of
Merger dated as of October 8, 1999 (the "MERGER AGREEMENT"), under which, on the
date hereof, Merger Sub was merged with and into Old Prize and Old Prize became
a wholly-owned subsidiary of the Company; and
WHEREAS, under the terms of the Merger Agreement, upon consummation of
the Merger, the Prize Agreement is to be terminated and the parties hereto are
to enter into this Agreement; and
WHEREAS, certain terms are defined in Section 3 of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions contained herein, the parties hereto agree as follows:
Section 1. Voting Agreement.
(a) General Rights. From and after the date hereof and until the
provisions of this Section 1 shall terminate as provided in Section 1(b) below,
the Owners, NGP II and NGP III agree to vote all of their Owner Shares and any
other voting securities of the Company over which they have voting control, and
the Company will take all reasonable actions within its control, that may be
necessary in order to cause:
<PAGE> 2
(i) the nomination and election to the Board of one
representative designated by a majority in interest of the Management
Owners;
(ii) the nomination and election to the Board of (A) three
representatives designated by NGP before the Pioneer Board Reduction
Event, and (B) four representatives designated by NGP on and after the
Pioneer Board Reduction Event;
(iii) the nomination and election to the Board of (A) two
representatives designated by Pioneer before the Pioneer Board
Reduction Event, and (B) one representative designated by Pioneer on
and after the Pioneer Board Reduction Event;
(iv) the removal from the Board (with or without cause) of any
or all of the representatives designated by the Management Owners
hereunder at the written request of a majority in interest of the
Management Owners (but only upon such written request and under no
other circumstances);
(v) the removal from the Board (with or without cause) of any
or all of the representatives designated by NGP hereunder at the
written request of NGP (but only upon such written request and under no
other circumstances);
(vi) the removal from the Board (with or without cause) of any
or all of the representatives designated by Pioneer hereunder at the
written request of Pioneer (but only upon such written request and
under no other circumstances);
(vii) in the event that any representative designated by the
Management Owners hereunder for any reason ceases to serve as a member
of the Board during his term of office, the resulting vacancy on the
Board to be filled by a representative designated by a majority in
interest of the Management Owners;
(viii) in the event that any representative designated by NGP
hereunder for any reason ceases to serve as a member of the Board
during his term of office, the resulting vacancy on the Board to be
filled by a representative designated by an authorized representative
of NGP;
(ix) in the event that any representative designated by
Pioneer hereunder for any reason ceases to serve as a member of the
Board during his term of office, the resulting vacancy on the Board to
be filled by a representative designated by an authorized
representative of Pioneer; and
(x) the provisions of Section 3 of Article Four of the Amended
and Restated Bylaws (together with related definitions) to be preserved
and effective without amendment, elimination, or superseding (whether
directly, by charter amendment, or otherwise) from the form attached as
Exhibit A hereto unless Pioneer previously consents in writing to such
amendment, elimination, or superseding.
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<PAGE> 3
(b) Termination.
(i) The provisions of this Section 1 shall terminate with
respect to any single Management Owner on the first to occur of the
following:
(A) the date such Management Owner's employment by
the Company shall have terminated;
(B) the date of the death of such Management Owner;
or
(C) the date of any Transfer or purported Transfer of
Owner Shares by such Management Owner in violation of the
terms of this Agreement.
(ii) The provisions of this Section 1 shall terminate as to
Pioneer on the first date on which Pioneer no longer owns shares of
Common Stock and Underlying Common Stock that constitute at least
14.03% of the total issued and outstanding shares of Common Stock
(Underlying Common Stock shall be deemed issued and outstanding for the
purpose of such computation) (whether such reduction of percentage
ownership occurs as a result of Pioneer's sale or transfer of such
shares, the Company's issuance of additional shares or the merger,
consolidation or other transaction involving the Company, or
otherwise). Upon the reduction of Pioneer's percentage ownership below
14.03%, as described in the preceding sentence, the provisions of this
Section 1 shall also terminate as to all other Owners, NGP II and NGP
III.
(iii) The provisions of this Section 1 shall terminate as to
all Owners, NGP II and NGP III on June 29, 2009, unless extended by the
parties hereto.
Section 2. Transfer Restrictions.
(a) General Rights. In addition to any restrictions on the Transfer of
Owner Shares that are imposed under the Securities Act or other applicable
securities laws, no Restricted Owner shall Transfer or Pledge all or any part of
such Restricted Owner's Owner Shares without the prior written consent of the
other Restricted Owners or in accordance with this Section 2.
(b) Pro-Rata Sale Rights after an IPO. No Restricted Owner shall have
the right to effect any Transfer of any of such Restricted Owner's Owner Shares
(other than as provided in Section 2(c) below) unless such Restricted Owner
proposing to Transfer such Owner Shares (a "SELLING OWNER") complies with the
tag-along requirements of clause (i) or (ii) below:
(i) Public Sales Through a Broker. If a proposed Transfer is
to be effectuated through an established brokerage firm and utilizing
the public securities markets (e.g., the New York Stock Exchange, the
American Stock Exchange or The Nasdaq Stock Market):
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<PAGE> 4
(A) Such Selling Owner shall provide prior written
notice of the following (a "PUBLIC SALE NOTICE") to all other
Restricted Owners ("TAG-ALONG OWNER(S)"): (I) the number of
shares proposed to be made available for sale (the "INITIAL
SHARES"); (II) the pricing and other instructions pursuant to
which the selected broker will be operating; (III) the name,
address, telephone number and facsimile number of the selected
broker and the name of the selected registered representative
at the broker; and (IV) confirmation that the selected broker
and selected registered representative have been advised that
the Tag-Along Owners may desire to elect to participate in the
proposed Transfer.
(B) After receiving a Public Sale Notice, a Tag-Along
Owner shall be entitled to elect to participate, up to such
Tag-Along Owner's Proportionate Share, in the proposed
Transfer through the selected broker, subject to such
Tag-Along Owner's (I) meeting all of the broker's requirements
to establish a customer account and execute transactions for
such Tag-Along Owner, (II) meeting all of the requirements
imposed by applicable securities laws in order to execute such
transaction (including without limitation Rule 144 under the
Securities Act), and (III) responding in writing within three
business days after receipt of such Public Sale Notice to such
Selling Owner, to the Tag-Along Owners and to the selected
broker. If the designated broker is unable to sell an amount
at least equal to the number of Initial Shares, the aggregate
number of shares which the designated broker is able to sell
shall be allocated on a Proportionate Share basis among such
Selling Owner and all Tag-Along Owners electing to participate
in the proposed Transfer.
(ii) Non-Broker Transactions. In the case of a proposed
Transfer that does not fall within the provisions of clause (i) of this
Section 2(b), such Selling Owner shall cause the Person or group that
proposes to acquire Owner Shares from such Selling Owner (the "PROPOSED
PURCHASER") to offer in writing (the "PURCHASE OFFER") to the Tag-Along
Owners, to purchase a Proportionate Share of the Owner Shares of the
Tag-Along Owners. Any such purchase shall be made in accordance with
the following:
(A) the purchase from each Tag-Along Owner shall be
made at the highest price per share and on such other terms
and conditions as the Proposed Purchaser has offered to
purchase Owner Shares from such Selling Owner;
(B) each Tag-Along Owner shall have no more than 20
days from the receipt of the Purchase Offer in which to accept
such Purchase Offer, in whole or in part;
(C) to the extent that a Tag-Along Owner accepts such
Purchase Offer, the number of Owner Shares to be sold to the
Proposed Purchaser by such Selling Owner shall be
proportionately reduced to the extent necessary to comply with
this Section 2(b)(ii); and
-4-
<PAGE> 5
(D) the closing of such purchase shall occur within
30 days after such acceptance or at such other time as such
Selling Owner, the Tag-Along Owners and the Proposed Purchaser
may agree.
(c) Excluded Transfers. The provisions of Section 2(b) above do not
apply to any Transfer by a Restricted Owner of such Restricted Owner's Owner
Shares in an Excluded Affiliate Transfer. The provisions of Section 2(b) above
do not apply to any Transfer by a Restricted Owner of such Restricted Owner's
Owner Shares pursuant to (i) a registration statement filed under the Securities
Act, or (ii) a sale effected through a national securities exchange or the
Nasdaq Stock Market.
(d) Termination. This Section 2 shall terminate upon the earlier to
occur of the following: (i) the first date on which the Restricted Owners
collectively do not own at least 20% of the outstanding common equity securities
of the Company or of any successor or assignee resulting from the consolidation,
merger or sale of all or substantially all of the assets of the Company; (ii)
the adjudication of the Company as a bankrupt, the execution by the Company of
an assignment for the benefit of creditors or the appointment of a receiver of
the Company; (iii) the voluntary or involuntary dissolution of the Company; (iv)
when there is otherwise only one surviving Restricted Owner as a party to this
Agreement; (v) June 29, 2009, unless extended by agreement of Restricted Owners
holding at least 80% of the Owner Shares held by Restricted Owners outstanding
on such date; or (vi) the written agreement of all the Restricted Owners. The
Company and the Restricted Owners each covenant and agree to enter into and to
use their best efforts to cause any successor or assignee of the Company
described in clause (i) of this Section 2(d) to enter into an agreement
substantially similar to this Agreement if the Restricted Owners collectively
own at least 20% of the equity interests in such successor or assignee.
Section 3. Definitions. As used in this Agreement, the following terms
shall have the meanings assigned to them in this Section 3:
"AGREEMENT" means this Voting and Shareholders Agreement, as the same
may be amended from time to time.
"BOARD" means the Board of Directors of the Company.
"COMMON STOCK" means the Company's common stock, par value $.01 per
share.
"COMPANY" has the meaning set forth in the introductory paragraph of
this Agreement.
"EMPLOYEE OWNERS" has the meaning set forth in the introductory
paragraph of this Agreement.
"EXCLUDED AFFILIATE TRANSFER" means (i) any transfer of Owner Shares by
a Restricted Owner, other than a Management Owner or an Employee Owner (whether
voluntarily or by operation of law) to a partner or other affiliate or a legal
successor of such Restricted Owner; (ii) any
-5-
<PAGE> 6
transfer of Owner Shares by a Restricted Owner who is an individual to a member
of such Restricted Owner's family or to a revocable trust for estate planning
purposes, but only if such Restricted Owner retains the right to vote such Owner
Shares following such transfer; (iii) any transfer upon the death of a
Restricted Owner who is an individual; and (iv) any transfer of Owner Shares by
a Restricted Owner which is a trust to the principal beneficiary of that trust;
provided that, in the case of any Transfer described in clause (i), (ii), (iii)
or (iv) above, such transferee agrees to be bound by the terms of this Agreement
and evidences same by executing a copy of this Agreement promptly upon receiving
the assignment of such Owner Shares.
"INITIAL SHARES" has the meaning set forth in Section 2(b)(i)(A)
hereof.
"MANAGEMENT OWNERS" has the meaning set forth in the introductory
paragraph of this Agreement.
"MERGER AGREEMENT" has the meaning set forth in the recitals to this
Agreement.
"MERGER SUB" has the meaning set forth in the recitals to this
Agreement.
"NGP," "NGP II," "NGP III" and "NGP V" have the meanings set forth in
the introductory paragraph of this Agreement.
"OLD PRIZE" has the meaning set forth in the introductory paragraph of
this Agreement.
"OTHER OWNERS" has the meaning set forth in the introductory paragraph
of this Agreement.
"OWNER(S)" means the Management Owners, the Employee Owners, the Other
Owners, NGP V and Pioneer.
"OWNER SHARES" means, with respect to any Owner, NGP II or NGP III: (i)
all shares of Common Stock or Series A Preferred currently held or held in the
future by such Person (including, without limitation, shares acquired upon the
exercise of any option, warrant or other right); provided that, in order to
participate in any Purchase Offer, such conversion must occur no later than the
deadline for acceptance of such offer as set forth in Section 2(b)(ii)(B)
hereof; (ii) any equity securities issued or issuable directly or indirectly to
such Person with respect to the Common Stock or Series A Preferred referred to
in clause (i) above by way of stock dividend or stock split or in connection
with a combination of shares, conversion, recapitalization, merger,
consolidation or other reorganization; and (iii) any other shares of any class
or series of voting security of the Company currently held or held in the future
by such Person. As to any particular shares constituting Owner Shares, such
shares will cease to be Owner Shares when they have been transferred to any
person who is not a current or future party to this Agreement, other than
pursuant to an Excluded Affiliate Transfer. In determining the percentage
ownership of any Person or Persons or their participation in a transaction, the
Series A Preferred shall be counted on an as-converted basis with the Common
Stock.
-6-
<PAGE> 7
"PERMITTED ASSIGN" means an assignee of Owner Shares who acquires such
shares in an Excluded Affiliate Transfer.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated association, business, or other legal
entity, and any governmental agency or political subdivision thereof.
"PIONEER" has the meaning set forth in the introductory paragraph of
this Agreement.
"PIONEER BOARD REDUCTION EVENT" means the first date on which Pioneer
no longer owns Common Stock and Underlying Common Stock that constitutes at
least 25.2% of the total issued and outstanding shares of Common Stock (whether
as a result of Pioneer's sale or transfer of such shares, the Company's issuance
of additional shares, a merger, consolidation or other fundamental change
involving the Company, or otherwise).
"PLEDGE" means any pledge of an interest in, or other encumbrance
placed upon, Owner Shares as security for indebtedness or for other purposes.
"PRIZE AGREEMENT" has the meaning set forth in the recitals to this
Agreement.
"PROPORTIONATE SHARE" means:
(i) for purposes of Section 2(b)(i) hereof, the number of
Owner Shares equal to the product of (A) the Initial Shares, or such
lesser number of shares that the designated broker has been able to
sell pursuant Section 2(b)(i) hereof, times (B) the fraction which is
equal to the total number of Owner Shares which a Tag-Along Owner
electing to participate in a Transfer owns, over the aggregate number
of Owner Shares owned by the Selling Owner and all Tag-Along Owners
electing to participate in a Transfer; and
(ii) for purposes of Section 2(b)(ii) hereof, the number of
Owner Shares equal to the product of (A) the total number of Owner
Shares which a Proposed Purchaser has offered to purchase from the
Selling Owner, times (B) the fraction which is equal to the total
number of Owner Shares which a Tag-Along Owner owns, over the aggregate
number of Owner Shares owned by the Selling Owner and all Tag-Along
Owners who have elected participate in a Transfer.
"PROPOSED PURCHASER" has the meaning set forth in Section 2(b)(ii)
hereof.
"PUBLIC SALE NOTICE" has the meaning set forth in Section 2(b)(i)(A)
hereof.
"PURCHASE OFFER" has the meaning set forth in Section 2(b)(ii) hereof.
"RESTRICTED OWNER(S)" means the Management Owners, the Employee Owners
and NGP V and their successors and assigns.
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<PAGE> 8
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLING OWNER" has the meaning set forth in Section 2(b) hereof.
"SERIES A PREFERRED" means the Company's Series A 6% convertible
preferred stock, par value $.01 per share.
"TAG-ALONG OWNER(S)" has the meaning set forth in Section 2(b)(i)(A)
hereof.
"TRANSFER" means any sale, assignment or other disposition of Owner
Shares, other than a Pledge.
"UNDERLYING COMMON STOCK" means at any time, with respect to any share
of Series A Preferred, the aggregate number of shares of Common Stock into which
such share is then convertible.
Section 4. Enforcement; Legends. No Owner Shares shall be transferred
on the books of the Company, nor shall any Transfer be effective, unless and
until the terms and provisions of this Agreement are first complied with and, in
case of violation of this Agreement by the attempted Transfer of Owner Shares
without compliance with the terms and provisions hereof, such Transfer shall be
invalid and of no effect. The Owners will cause the Company to imprint a legend
on any certificates evidencing Owner Shares which are subject to this Agreement
referring to the voting rights and the restrictions on Transfer of the Owner
Shares imposed hereunder. Any such legend shall be removed from the certificates
evidencing any shares which cease to be Owner Shares, as set forth in the
definition of such term in Section 3 hereof.
Section 5. Termination. This Agreement shall terminate upon the
termination of Section 1 and Section 2 hereof.
Section 6. Miscellaneous.
(a) Benefit. This Agreement will only bind and inure to the benefit of,
and will only be enforceable by and against, the original parties hereto and any
Permitted Assigns under this Agreement.
(b) Notices. Whenever in this Agreement, notice is required as
permitted to be given it shall be given in writing, and if such notice is given
by registered United States mail it shall be deemed to have been received on the
second business day after the date such notice is posted. All notices hereunder
to the Company shall be mailed to it at the address of its principal place of
business and all notices to the Owners shall be mailed to them at their last
known address as shown on the books and records of the Company. Any party may
change such party's mailing address by giving written notice of such change to
all other parties.
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<PAGE> 9
(c) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE.
(d) Number. Words in the singular shall be construed to include the
plural and vice versa, unless the context otherwise requires.
(e) Headings. The headings appearing in this Agreement are inserted
only for convenience of reference and in no way shall be construed to define,
limit or describe the scope or intent of any provision of this Agreement.
(f) Severability. Every provision in this Agreement is intended to be
severable. In the event that any provision in this Agreement shall be held
invalid, the same shall not affect in any respect whatsoever the validity of the
remaining provisions of this Agreement; provided, however, that if any such
provision may be made enforceable by limitation thereof, then such provision
shall be deemed to be so limited and shall be enforceable to the maximum extent
permitted by applicable law.
(g) Joinder. The spouse, if any, of each Management Owner and Employee
Owner who resides in a state subject to community property laws joins in the
execution and delivery of this Agreement for the express purpose of binding his
or her community property interests, if any, in the Owner Shares.
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute but one and the same instrument.
(i) Entirety and Modification. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supercedes all prior understandings and agreements regarding such matters,
including without limitation the Prize Agreement, which is hereby terminated.
This Agreement may not be modified, supplemented or amended in any respect
except by written instrument executed by all parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
Prize Energy Corp. Prize Natural Resources, Inc.
(formerly known as (formerly known as
Vista Energy Resources, Inc.) Prize Energy Corp.)
By: /s/ Philip B. Smith By: /s/ Lon C. Kile
--------------------------------- ----------------------------
Philip B. Smith, Chairman and Lon C. Kile
Chief Executive Officer President
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<PAGE> 10
MANAGEMENT OWNERS
Initial Number of
Owner Shares:
356,257 shares of /s/ Philip B. Smith
Common Stock --------------------------------------------------
Philip B. Smith, Trustee of The Philip B. Smith
Revocable Trust Dated July 25, 1994
Initial Number of
Owner Shares:
84,134 shares of /s/ Philip B. Smith
Common Stock --------------------------------------------------
Philip B. Smith, Trustee of The Scott C. Smith
Irrevocable Trust Dated January 15, 1996
Initial Number of
Owner Shares:
84,134 shares of /s/ Philip B. Smith
Common Stock --------------------------------------------------
Philip B. Smith, Trustee of The Laura E. Smith
Irrevocable Trust Dated January 15, 1996
Initial Number of
Owner Shares:
41,630 shares of /s/ Lon C. Kile
Common Stock --------------------------------------------------
Lon C. Kile
NGP
NATURAL GAS PARTNERS II, L.P.
By: G.F.W. Energy II, L.P., General Partner
By: GFW II, L.L.C., General Partner
Initial Number of
Owner Shares:
511,709 shares of By: /s/ Kenneth A. Hersh
Common Stock --------------------------------------------------
Kenneth A. Hersh, Authorized Member
NATURAL GAS PARTNERS III, L.P.
By: Rainwater Energy Investors, L.P.
General Partner
By: GFW III, L.L.C., General Partner
Initial Number of
Owner Shares:
699,390 shares of By: /s/ Kenneth A. Hersh
Common Stock --------------------------------------------------
Kenneth A. Hersh, Authorized Member
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<PAGE> 11
NATURAL GAS PARTNERS V, L.P.
By: G.F.W. Energy V, L.P., General Partner
By: GFW V, L.L.C., General Partner
Initial Number of
Owner Shares:
7,326,821 shares of By: /s/ Kenneth A. Hersh
Common Stock --------------------------------------------------
Kenneth A. Hersh, Authorized Member
PIONEER
PIONEER NATURAL RESOURCES USA,
INC.
Initial Number of
Owner Shares: By: /s/ Mark L. Withrow
3,984,197 shares of --------------------------------------------------
Series A Preferred Mark L. Withrow
Executive Vice President
EMPLOYEE OWNERS
Initial Number of
Owner Shares:
42,068 shares of /s/ Monica Griffin
Common Stock --------------------------------------------------
Monica Griffin
OTHER OWNERS
Initial Number of
Owner Shares:
356,257 shares of /s/ Kathlyn C. Smith
Common Stock --------------------------------------------------
Kathlyn C. Smith, Trustee of The Kathlyn C.
Smith Revocable Trust Dated July 25, 1994
-11-
<PAGE> 1
EXHIBIT C
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT") is made and entered into as of the 8th day of February, 2000, by
and among Vista Energy Resources, Inc., a Delaware corporation (the "COMPANY"),
Prize Energy Corp., a Delaware corporation ("PRIZE"), and each of the parties
listed as Owners on Exhibit A hereto (collectively, the "OWNERS" and,
individually, an "OWNER"). Certain terms used herein are defined in Section 3 of
this Agreement.
1. Background. The Company, Prize and PEC Acquisition Corp., a Delaware
corporation ("MERGER SUB"), have entered into a transaction, which was
consummated on the date hereof, in which Merger Sub was merged with and into
Prize, Prize became a wholly-owned subsidiary of the Company and the
stockholders of Prize received shares of capital stock in the Company in
exchange for their shares of capital stock in Prize (the "MERGER"). The Company
and the Vista Holders are parties to a Registration Rights Agreement dated
October 28, 1998 (the "PRIOR VISTA AGREEMENT"). Prize and the Prize Holders are
parties to an Amended and Restated Registration Rights Agreement dated June 29,
1999 (the "PRIOR PRIZE AGREEMENT"). The parties hereto desire to enter into this
Agreement in order to terminate and replace the Prior Vista Agreement and the
Prior Prize Agreement and to set forth the rights of the parties hereto with
respect to the registration of the shares of capital stock of the Company. The
Prior Vista Agreement and the Prior Prize Agreement are hereby terminated and
canceled, effective on the date hereof, and shall have no further force or
effect.
2. Registration under Securities Act, etc.
2.1. Registration on Request.
(a) Registration of Immediate Offering. Concurrently with or from time
to time after the Secondary Offering Date, subject to the limitations of Section
2.1(g) hereof, upon the written request (a "DEMAND REQUEST") of one or more
Owners, requesting that the Company effect the registration under the Securities
Act of all or a portion of such Owners' Registrable Securities (an "IMMEDIATE
OFFERING REGISTRATION") and specifying the number of Registrable Securities
requested to be registered and the intended method of disposition thereof
(including whether or not such requested disposition is to be in an underwritten
offering):
(i) Within five business days after the receipt of such
request, the Company shall give written notice of the Demand Request
(together with a copy of the Demand Request) to all other Owners of
Registrable Securities, if any; and
(ii) After giving such notice and subject to the limitations
set forth in Section 2.1(g) below, the Company shall use reasonable
efforts to file a registration
<PAGE> 2
statement with the Commission with respect to the Immediate Offering
Registration as soon as is practicable but in any event no later than
60 days after the Company's receipt of the Demand Request in order to
effect the registration under the Securities Act of:
(A) the Registrable Securities which the Company is
requested to register in the Demand Request, and
(B) all other Registrable Securities which the
Company is requested to register by the Owners who give
written notice to the Company within 15 business days after
written notice of the Demand Request from the Company.
The Owner's notice shall state the number of Registrable Securities
requested to be registered and whether the request to register such
securities constitutes a Demand Request pursuant to Section 2.1 of this
Agreement or a request for Piggyback Registration (as defined in
Section 2.2(a) hereof) pursuant to Section 2.2 of this Agreement. If
such request constitutes a Demand Request, such written notice to the
Company shall specify the intended method of disposition of the Owner's
Registrable Securities (including whether or not such requested
disposition is to be in an underwritten offering).
(b) Registration of Delayed or Continuous Offering. Concurrently with
or from time to time after the Secondary Offering Date (or at any time, in the
case of a Shelf Registration, as defined below, which does not provide for
underwritten take-downs), subject to the limitations of Section 2.1(g) hereof,
upon the written request (the "SHELF REQUEST") of Pioneer, the Individual Vista
Holders or the Owners of more than 50% of the Registrable Securities held by
Owners other than Pioneer and the Individual Vista Holders, requesting that the
Company effect the registration under the Securities Act of all or a portion of
such Owners' Registrable Securities for resale in a delayed or continuous
offering to the extent permitted by Rule 415 (or any successor rule thereto)
under the Securities Act (a "SHELF REGISTRATION" and, together with an Immediate
Offering Registration, a "DEMAND OFFERING") and specifying the number of
Registrable Securities requested to be registered and the intended methods of
disposition thereof (including whether or not such requested registration is to
include underwritten offerings):
(i) Within five business days after the receipt of the Shelf
Request, the Company shall give written notice of the Shelf Request
(together with a copy of the Shelf Request) to all other Owners of
Registrable Securities, if any; and
(ii) After giving such notice and subject to the limitations
set forth in Section 2.1(g) below, the Company shall use reasonable
efforts to file a registration statement with the Commission with
respect to the Shelf Registration as soon as is reasonable but in any
event no later than 60 days after the Company's receipt of the Shelf
Request in order to effect the registration under the Securities Act
of:
(A) the Registrable Securities which the Company is
requested to register in the Shelf Request, and
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<PAGE> 3
(B) all other Registrable Securities which the
Company is requested to register by Owners who give written
notice to the Company within 15 business days after written
notice of the Shelf Request from the Company.
The Owner's notice shall state the number of Registrable Securities
requested to be registered, will constitute a Shelf Request hereunder,
and shall specify the intended methods of disposition of the Owner's
Registrable Securities (including whether or not such requested
registration should include underwritten offerings).
(c) Right to Defer Registration. Notwithstanding anything to the
contrary set forth in Sections 2.1(a) and 2.1(b) above, the Company shall not be
obligated to take any action to notify holders or to effect any Immediate
Offering Registration or Shelf Registration pursuant to Section 2.1(a) or 2.1(b)
above if the Company shall have furnished to the Owners requesting registration
a certificate signed by the Chairman or President and the Chief Financial
Officer of the Company stating that, in the good faith judgment of the Board of
Directors (excluding Board members designated by the holders requesting such
registration) of the Company, such request could materially interfere with bona
fide financing, acquisition, or other material business plans of the Company or
would require disclosure of non-public information, the premature disclosure of
which could materially adversely affect the Company. Such certificate shall
contain a general statement of the reasons for such deferral and an estimate of
the anticipated period of deferral, and the Company shall promptly notify the
holders requesting such registration of the expiration or earlier termination of
such deferral. If the Company defers the registration requested under this
Section 2.1, the Company shall promptly (but not later than 90 days following
the occurrence of the event or circumstances permitting the deferral) notify the
holders of Registrable Securities requesting such registration when the events
or circumstances permitting such deferral have ended and at that time shall
proceed with the requested registration and in accordance with this Agreement.
If the Company shall defer the requested registration pursuant to this Section
2.1(c), then any related requested registration may be withdrawn by the holder
of Registrable Securities requesting such registration by giving notice to the
Company at any time within 10 business days after the date the Company notifies
such holder of its willingness to proceed with the requested registration. Upon
such withdrawal, the withdrawn requested registration shall not count as an
exercise of the demand registration rights granted herein. Holders of
Registrable Securities shall not be liable to the Company for any filing or
other expenses incurred as a result of a withdrawal of a requested registration
made pursuant to this Section 2.1(c). The Company shall not defer a requested
registration more than one time in any continuous 12-month period.
(d) Registration of Other Securities. Whenever the Company shall effect
a registration pursuant to this Section 2.1 in connection with an underwritten
offering by one or more holders of Registrable Securities, no securities other
than Registrable Securities shall be included among the securities covered by
such registration unless (i) the managing underwriter of such offering shall
have advised each holder of Registrable Securities to be covered by such
registration in writing that the inclusion of such other securities would not
adversely affect such offering, or (ii) the Requisite Holders of Registrable
Securities to be covered by such registration shall have consented in writing to
the inclusion of such other securities, or (iii) the offering is the Initial
Secondary Offering (in
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<PAGE> 4
which case the only securities included shall be securities to be sold by the
Company and Registrable Securities in accordance with the applicable priority
provisions set forth in this Agreement).
(e) Registration Statement Form. Registrations under this Section 2.1
shall be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and as shall be reasonably acceptable to the Requisite
Holders, and (ii) as shall permit the disposition of such Registrable Securities
in accordance with the intended method or methods of disposition specified in
the request for such registration. The Company agrees to include in any such
registration statement all information which holders of Registrable Securities
being registered shall reasonably request.
(f) Expenses. The Company shall pay all Registration Expenses in
connection with any registration of Registrable Securities requested pursuant to
this Section 2.1 and all Persons on whose behalf securities of the Company are
included in such registration shall pay their own Selling Expenses, with joint
costs allocated on the basis of the respective amounts of the securities then
being registered on their behalf.
(g) Limitations on Requested Registrations. The Company's obligation to
take or continue any action to effect a requested registration under this
Section 2.1 shall be subject to the following limitations:
(i) The number of registrations that the Company is required
to effect:
(A) at the request of Pioneer, shall not exceed one
registration under Section 2.1(k) below and two Demand
Registrations, one of which may be a Shelf Registration,
(B) at the request of the Individual Vista Holders,
shall not exceed one Demand Registration, which may be a Shelf
Registration, but the Company shall not be required to effect
any Shelf Registration which provides for underwritten
take-downs until Pioneer shall no longer own any Registrable
Securities, and
(C) at the request of the holders of Registrable
Securities other than Pioneer, shall not exceed two Immediate
Offering Registrations and one Shelf Registration; provided,
however, that no more than one such registration request shall
be effected on Form S-1 and the remainder shall be effected on
Form S-3 (such references herein to Securities Act
registration forms shall be deemed to also refer to any
successor forms thereto);
provided, that a registration requested pursuant to this Section 2.1
shall not be deemed to have been effected (x) unless a registration
statement with respect thereto has been declared effective and remained
effective for a period of at least 90 days (or, with respect to a Shelf
Registration, until the earlier of the date on which all securities
covered thereby have ceased to be Registrable Securities or the date on
which all of such securities have been disposed
-4-
<PAGE> 5
of in accordance with the intended methods of disposition by the seller
or sellers thereof, subject to the provisions of Section 2.1(l) below),
(y) if, after a registration statement has become effective, such
registration is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or
court for any reason, or (z) if the conditions to closing specified in
the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied, other than as a
result of the voluntary termination of such offering by the Requisite
Holders;
(ii) Except for the rights of Pioneer to initiate registration
under this Section 2.1 and the rights of the Individual Vista Holders
to initiate registration under the circumstances set forth in Section
2.1(g)(i)(B) above, the Company shall not be required to effect a
Registration or an underwritten takedown off of a Shelf Registration
pursuant to this Section 2.1 unless such registration has been
initiated by the holders of Registrable Securities other than Pioneer
which represent at least 30% of the Registrable Securities then
outstanding, and have an estimated aggregate offering price to the
public of at least $3,000,000;
(iii) The Company shall not be required to effect any
registration pursuant to this Section 2.1 during the applicable waiting
period (defined below) following the filing of a registration statement
under the Securities Act with respect to the public offering of any
class of the Company's equity securities in an Immediate Offering
Registration or an underwritten take-down off a Shelf Registration,
whether such offering is for the account of the Company or the account
of the owners of its equity securities (other than a registration of
securities with respect to an employee benefit, retirement or similar
plan or pursuant to the Midland Agreement); for purposes of this clause
(iii), the "APPLICABLE WAITING PERIOD" shall be a period commencing
upon the filing of the registration statement for such Immediate
Offering Registration or underwritten take-down and extending for a
period of 90 days following the earlier of (A) the date of final
disposition of all securities offered for sale pursuant to such
registration statement in accordance with the intended methods of
disposition by the seller or sellers thereof, or (B) the date of the
termination or withdrawal of such registration statement; provided,
that, if the Company shall have entered into an agreement in connection
with any underwritten public offering of securities that restricts the
registration or sale of the Company's equity securities (a "LOCK-UP
AGREEMENT") for a period longer than 90 days, the applicable waiting
period shall be the lesser of (x) the period specified in the Lock-Up
Agreement, or (y) 180 days; and
(iv) The Company shall not be required to effect any
registration pursuant to this Section 2.1 during the applicable waiting
period (defined below) following the filing of a registration statement
under the Securities Act with respect to the public offering of any
class of the Company's equity securities in a Shelf Registration; for
purposes of this clause (iv), the "APPLICABLE WAITING PERIOD" shall be
a period (A) commencing upon the filing of the registration statement
for such Shelf Registration and extending for a period of 90 days
following the date on which such registration statement becomes
effective, and (B) commencing upon an underwritten take-down from such
Shelf Registration and extending for a period of 90 days thereafter.
-5-
<PAGE> 6
(h) Selection of Underwriters. If a Demand Offering pursuant
to this Section 2.1 involves an underwritten offering, the underwriter
or underwriters thereof shall be selected by the Requisite Holders with
the approval of the Company.
(i) Priority in Requested Registrations.
(i) In the Initial Secondary Offering, including such
an offering pursuant to Section 2.1(k) hereof, Pioneer shall
have the right to include Registrable Securities in such
offering without being subject to any cutback, without
Pioneer's written consent, to the extent of the lesser of (A)
shares with a value (based on the final offering price to the
public) of $50,000,000, or (B) 50 percent of the total number
of shares to be sold in offering, plus 50 percent of any
over-allotment for such offering (the "PIONEER PRIORITY
AMOUNT") and no Prize Holder or Vista Holder (other than an
Individual Vista Holder) shall have any right to include
shares in the Initial Secondary Offering, without Pioneer's
written consent; provided that, if the Initial Secondary
Offering does not include any shares to be sold by the
Company, the limitation in clause (B) above shall not be
applicable and the Pioneer Priority Amount will only be
limited to an amount less than $50,000,000 if the managing
underwriter of such Demand Offering shall advise the Company
and Pioneer in writing that the amount of Registrable
Securities included in the Initial Secondary Offering must be
limited to a lesser amount (which shall be specified in the
notice) in order to prevent the Initial Secondary Offering
from materially and adversely affecting the price or success
of any subsequent offerings to be initiated by the Company
within the period of 180 days to 360 days following the
Initial Secondary Offering, in which case the Pioneer Priority
Amount shall be such lesser amount specified by such managing
underwriter.
(ii) In the first underwritten Demand Offering
following the Initial Secondary Offering (including, without
limitation, a take-down under a Shelf Registration), if the
managing underwriter of such Demand Offering shall advise the
Company in writing (with a copy to the Owners of Registrable
Securities that made the Demand Request with respect to such
Demand Offering) that the inclusion of the number of
securities requested to be included in such Demand Offering
will materially and adversely affect the price or success of
such Demand Offering, the Company will include in such
registration, to the extent of the number of securities which
the Company is so advised can be sold in such Demand Offering,
Registrable Securities requested to be included in such
registration allocated as follows (and any amounts above the
amounts so allocated shall not be included): Pioneer shall
have the right to sell 50 percent of the Registrable
Securities to be sold in such Demand Offering and the
remaining 50 percent of the Registrable Securities to be sold
in such Demand Offering shall be allocated pro rata among the
other Owners of Registrable Securities who elected to
participate in such Demand Offering pursuant to a Demand
Request given in accordance with Section 2.1(a)(ii)(B) hereof
("OTHER DEMAND OWNERS") on the basis of the percentage of the
Registrable Securities of the Company held by each such Other
Demand Owner to the total Registrable Securities of all such
Other Demand Owners); provided, that, if there is any
over-allotment for such Demand Offering, the allocation of
Registrable Securities among Pioneer and each of the Other
Demand Owners that will satisfy such over-allotment shall be
-6-
<PAGE> 7
based on each selling Owner's percentage ownership of all of
the Registrable Securities then owned by all such selling
Owners.
(iii) In the second underwritten Demand Offering
following the Initial Secondary Offering and each underwritten
Demand Offering thereafter (including, without limitation,
take-downs under a Shelf Registration), if the managing
underwriter of such Demand Offering shall advise the Company
in writing (with a copy to the Owners of Registrable
Securities that made the Demand Request with respect to such
Demand Offering) that the inclusion of the number of
securities requested to be included in such Demand Offering
will materially and adversely affect the price or success of
such Demand Offering, the Company will include in such
registration, to the extent of the number of securities which
the Company is so advised can be sold in such Demand Offering,
Registrable Securities requested to be included in such
registration pro rata among the Owners thereof who submitted
such Demand Request (including, without limitation, all such
Owners who elect to participate in such Demand Offering
pursuant to a Demand Request given in accordance with Section
2.1(a)(ii)(B) hereof) on the basis of the percentage of the
Registrable Securities of the Company held by the Owners of
such Registrable Securities (and amounts above the amounts so
allocated shall not be included); provided, however, in the
event the number of Registrable Securities which the Owners of
Registrable Securities requested to be included in a Demand
Offering is reduced by more than 2%, those Owners of
Registrable Securities shall have the right to one additional
demand registration under Section 2.1(g) above.
(j) Holdback Period. If required by the underwriter or
underwriters selected by the Company for an underwritten offering
pursuant to this Section 2.1 (collectively, the "UNDERWRITER"), all
Owners (whether or not they propose to distribute their Registrable
Securities through such underwriting) shall agree not to sell publicly
any of their Registrable Securities for such period as the Underwriter
may reasonably request; provided, that such period shall not exceed 90
continuous days.
(k) Initial Secondary Offering. Notwithstanding the other
provisions of this Agreement, except as set forth in this Section
2.1(k), the Company shall not effect a registration, other than a Shelf
Registration which does not provide for underwritten take-downs, under
this Section 2.1 if an Initial Secondary Offering has not occurred.
After the date of this Agreement, Pioneer shall have the right to
require the Company to effect an Initial Secondary Offering or to
include Pioneer's Registrable Securities in an Initial Secondary
Offering that the Company initiates, whereupon the Company shall be
required to use reasonable efforts to effect such registration in
accordance with this Section 2.1. Any shares included by any Owner
(other than Pioneer) in an offering initiated by the Company or the
offering initiated pursuant to this Section 2.1(k) will be deemed
included pursuant to that Owner's rights under Section 2.2 hereof.
(l) Suspension of the Distribution of the Shares.
(i) In connection with any Shelf Registration, if the
Company determines in good faith that the distribution of any
of the Registrable Securities would materially interfere with
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bona fide financing, acquisition, or other material business
plans of the Company or any of its subsidiaries or would
require disclosure of non-public information, the premature
disclosure of which could materially adversely affect the
Company, and promptly gives the holders of Registrable
Securities included in such registration written notice of
such determination, the Company shall be entitled to require
said holders to suspend their distribution of the Registrable
Securities for a reasonable period of time which, for purposes
of this Section 2.1(l)(i), shall not exceed 90 days. Such
written notice shall contain a general statement of the
reasons for such suspension and an estimate of the anticipated
period of suspension, and the Company shall promptly notify
said holders of the expiration or earlier termination of such
suspension. If the Company shall suspend a Shelf Registration
pursuant to this Section 2.1(l)(i), then the Company shall
extend the effectiveness of the applicable registration
statement by the same number of days comprising the suspension
period. Alternatively, if the Company shall suspend a Shelf
Registration pursuant to this Section 2.1(l)(i) for more than
10 business days, then any related requested registration may
be withdrawn by the holder of Registrable Securities
requesting such registration by giving notice to the Company
at any time within 10 business days after the date the Company
notifies such holder of its willingness to proceed with the
requested registration.
(ii) Also in connection with any Shelf Registration,
if the Company shall file a registration statement (other than
in connection with the registration of securities issuable
pursuant to an employee stock option, stock purchase, dividend
reinvestment or similar plan or pursuant to a merger, exchange
offer or transaction of the type specified in Rule 145(a)
under the Securities Act) with respect to the Company's
securities, and the Company reasonably determines (in the case
of a non-underwritten offering) or the managing underwriter or
underwriters advise the Company (in the case of an
underwritten offering) that a sale or distribution of the
Registrable Securities would adversely affect such offering,
then, upon written notice by the Company, the holders of
Registrable Securities included in such registration shall, to
the extent not inconsistent with applicable law, suspend the
distribution of any of the Registrable Securities or any sale
of the Registrable Securities pursuant to Rule 144 under the
Securities Act during the 10-day period prior to and the
90-day period following the effective date of such
registration statement, with such 90-day period being subject
to early termination by the Company with the approval of the
managing underwriter or underwriters. The Company shall not
effect a suspension pursuant to this Section 2.1(l)(ii) more
than one time in any 12-month period.
(m) Shelf Take-Down Procedures. The Owners' rights to require
a Shelf Registration shall include the right, on or after the Secondary
Offering Date, to require one underwritten offering off that Shelf
Registration (a "TAKE-DOWN") plus an additional number of take-downs
equal to the number of unused Demand Offerings remaining for the Owners
(as set forth in Section 2.1(g) hereof). One or more Owners having
Registrable Securities included in an effective Shelf Registration may
request an underwritten take-down, and the Company shall be obligated
to give notice and opportunity to participate in the take-down to the
other Owners having Registrable Securities included in that Shelf
Registration, in accordance with the same procedures, limitations and
allocations applicable to a Demand Request for an Immediate Offering
Registration (with such
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<PAGE> 9
changes in those procedures, limitations and allocations as are
necessary to reflect that it is a take-down from a Shelf Registration).
No Owner may request a take-down for a number of that Owner's
Registrable Securities that exceeds the number of that Owner's
Registrable Securities already included in the effective Shelf
Registration.
(n) Registration of Warrants. A registration statement filed
pursuant to a Demand Registration or a Shelf Registration and which
registers the resale of any Warrants shall also include the
registration of the issuance of all shares of common stock of the
Company issuable upon the exercise of such Warrants by any holder
thereof who either (i) purchases such Warrants pursuant to such
registration statement or (ii) purchases such Warrants after such
Warrants have been previously purchased by another person pursuant to
such registration statement.
2.2. Incidental Registration.
(a) Right to Include Registrable Securities. If the Company,
at any time after the date of this Agreement, proposes to register any
of its securities under the Securities Act (other than (i) in
connection with a registration of securities issuable under any
employee benefit, retirement or similar plan, or (ii) with respect to a
Rule 145 transaction), whether or not for sale for its own account, and
if notice of such transaction is not already given pursuant to Section
2.1 above, it shall each such time give written notice to all holders
of Registrable Securities, at least 30 days before the filing date of
the registration statement with the Commission, of its intention to
register such shares and of the Owners' rights under this Section 2.2.
Upon the written request of any Owner made within 15 business days
after the receipt of the Company's notice (which request shall specify
that the Owner of Registrable Securities desires to include such
Registrable Securities in an offering pursuant to this Section 2.2 and
shall specify the number of Registrable Securities requested to be
included in such offering), the Company shall use reasonable efforts to
effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the
holders thereof ("PIGGYBACK REGISTRATION"), to the extent requisite to
permit the disposition of the Registrable Securities so to be
registered; provided, that if, at any time after giving written notice
of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may,
at its election, give written notice of such determination to each
holder of Registrable Securities and, thereupon, (i) in the case of a
determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the
rights of any holder or holders of Registrable Securities entitled to
do so to request that such registration be effected as a registration
under Section 2.1(a) above, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in registering
such other securities; and provided further, that no Registrable
Securities shall be included in an underwritten registration except
Registrable Securities of the same class as those being registered
therein. Each holder of Registrable Securities shall be permitted to
withdraw all or part of such holder's Registrable Securities from a
Piggyback Registration at any time before the earlier of the effective
date of the related registration statement and the signing of a
definitive
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<PAGE> 10
underwriting, purchase or agency agreement with the underwriters.
Subject to Section 2.2(c) below, the Company shall use all commercially
reasonable efforts to cause the managing underwriters of a proposed
offering to permit the Registrable Securities requested to be included
in the offering to be included at the same price and on no less
favorable terms and conditions as any similar securities included
therein. No registration effected under this Section 2.2 shall be
deemed to have been effected pursuant to Section 2.1 above or shall
relieve the Company of its obligation to effect any registration upon
request under Section 2.1 above.
(b) Expenses. The Company shall pay all Registration Expenses
in connection with any registration of Registrable Securities requested
pursuant to this Section 2.2, and all Persons on whose behalf
securities of the Company are included in such registration shall pay
their own Selling Expenses, with joint costs allocated on the basis of
the respective amounts of the securities then being registered on their
behalf.
(c) Priority in Incidental Registrations.
(i) If a registration pursuant to this Section 2.2
was initiated as an offering of securities for sale for the
account of the Company (other than the Initial Secondary
Offering, which shall be governed by the priority provisions
set forth in Section 2.1(i)(i) hereof), to be distributed (on
a firm commitment basis) by or through one or more
underwriters, and if the managing underwriter of such
underwritten offering shall inform the Company and the Owners
of Registrable Securities requesting such registration by
letter of its belief that the number of securities requested
to be included in such registration will materially and
adversely affect the price or success of the offering, then
the Company shall include in such registration, to the extent
of the number of securities which the Company is so advised
can be sold in (or during the time of) such offering, first,
all securities proposed by the Company to be sold for its own
account, second, such Registrable Securities requested to be
included in such registration, pro rata on the basis of the
number of such securities so proposed to be sold and so
requested to be included, and third, all other securities of
the Company requested to be included in such registration, pro
rata on the basis of the number of such securities so proposed
to be sold and so requested to be included (and any amounts
above the amounts so allocated shall not be included).
(ii) If a registration pursuant to this Section 2.2
was initiated as an offering of Registrable Securities for
sale for the account of Owners that made a Demand Request
(other than the Initial Secondary Offering and the first
underwritten Demand Offering following the Initial Secondary
Offering, which shall be governed by the priority provisions
set forth in Sections 2.1(i)(i) and 2.1(i)(ii) hereof,
respectively), to be distributed (on a firm commitment basis)
by or through one or more underwriters, and if the managing
underwriter of such underwritten offering shall inform the
Owners of Registrable Securities that made the Demand Request
and the Company by letter of its belief that the number of
securities requested to be included in such registration will
materially and adversely affect the price or success of the
Demand Offering, then the Company shall include in such
registration, to the extent of the number of securities which
the Company is so advised can be sold in (or during
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<PAGE> 11
the time of) such offering, first, all securities proposed by
the Owner of Registrable Securities that made the Demand
Request to be sold for its own account, in accordance with the
provisions of Section 2.1 above (including, without
limitation, all such Owners who elect to participate pursuant
to a Demand Request given in accordance with Section
2.1(a)(ii)(B) hereof), second, all securities proposed by the
Company to be sold for its own account, third, such
Registrable Securities requested to be included in such
registration, pro rata on the basis of the number of such
securities so proposed to be sold and so requested to be
included, and fourth, all other securities of the Company
requested to be included in such registration, pro rata on the
basis of the number of such securities so proposed to be sold
and so requested to be included (and any amounts above the
amounts so allocated shall not be included).
2.3. Demand Registration Procedures. If and whenever the
Company is required to use reasonable efforts to effect the
registration of any Registrable Securities under the Securities Act as
provided in Section 2.1 above, the Company shall as expeditiously as
possible:
(i) prepare and (as soon thereafter as possible or in
any event no later than 60 days after the first Demand
Request) file with the Commission the requisite registration
statement to effect such registration and thereafter use
reasonable efforts to cause such registration statement to
become effective; provided, that (A) a reasonable time before
filing a registration statement or prospectus or other
offering materials, or any amendments or supplements thereto,
the Company will furnish to the Owners of Registrable
Securities to be registered and to one counsel selected by the
holders of a majority of the Registrable Securities included
in such registration (and one separate counsel for each such
Owner if paid for by such Owner), copies of all such documents
proposed to be filed, which documents will be subject to the
review of such counsel, and shall thereafter furnish revised
drafts and definitive versions of all such documents when they
are circulated to the working group for the Demand Offering,
and (B) after the filing of the registration statement, the
Company will promptly notify the counsel to the Owners of
Registrable Securities of comments received from the
Commission or the securities exchange or market or
inter-dealer quotation system, and other governmental
authorities as may be applicable; provided, that, in
connection with a Demand Offering, the Company shall not file
or circulate to potential investors any registration statement
or prospectus, or other offering materials, or any amendments
or supplements thereto, if the Owners of Registrable
Securities who hold a majority of the Registrable Securities
covered by such registration statement, prospectus, or other
offering materials (acting through their counsel), the
managing underwriter, or its counsel shall reasonably object,
in writing, on a timely basis;
(ii) prepare and file with the Commission, any
applicable securities exchange or market or inter-dealer
quotations system 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 disposition of all
securities covered by such registration statement until such
time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such
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<PAGE> 12
registration statement; provided, however, that the Company
shall not be required to maintain the effectiveness of any
registration statement for more than 90 days or such longer
period as required by Section 2.1(l) hereof in the event of a
suspension of a registration statement (or, with respect to a
Shelf Registration, until the earlier of the date on which all
securities covered thereby have ceased to be Registrable
Securities or the date on which all of such securities have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof, subject to the
provisions of Section 2.1(l) above) and comply with the
provisions of the Securities Act, the Exchange Act, and all
other applicable laws with respect to the disposition of all
securities covered by such registration statement or other
offering materials during such period in accordance with the
intended methods of disposition by the Owners of Registrable
Securities set forth in such registration statement or other
offering materials;
(iii) furnish, without charge to each seller of
Registrable Securities covered by such registration statement,
such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each
case including, without limitation, all exhibits), such number
of copies of the prospectus contained in such registration
statement (including, without limitation, each preliminary
prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and
such other documents, as such seller may reasonably request;
(iv) use reasonable efforts to obtain the withdrawal
of any order suspending or withdrawing the authorization for
an offering, the effectiveness of a registration statement, or
the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest
practicable moment;
(v) cooperate with the Owners of Registrable
Securities and the managing underwriter to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall
not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Corporation or
other appropriate book-entry depositary; and enable such
Registrable Securities to be registered in such names as the
managing underwriter may request at least one business day
prior to any sale of Registrable Securities;
(vi) make available for inspection by the Owners of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement or other
offering materials and any attorney, accountant or other
professional retained by any of the Owners of Registrable
Securities or underwriter (collectively, the "INSPECTORS"),
all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries as shall be
reasonably necessary to enable them to exercise their due
diligence responsibility; cause the Company's officers,
directors, examiners, accountants, attorneys, employees and
subsidiaries to supply all information reasonably requested by
any such Inspectors in connection with such registration
statement or other offering materials; and
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<PAGE> 13
cooperate and assist in the performance of any due diligence
investigation by any underwriter (including, without
limitation, any qualified independent underwriter) or any of
the Owners of Registrable Securities;
(vii) use reasonable efforts to register or qualify
all Registrable Securities and other securities covered by
such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller thereof
shall reasonably request, to keep such registration or
qualification in effect for so long as such registration
statement remains in effect, and to take any other action
which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of
the securities owned by such seller, except that the Company
shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of
this Section 2.3(vii) be obligated to be so qualified or to
consent to general service of process in any such
jurisdiction;
(viii) use reasonable efforts to cause all
Registrable Securities covered by such registration statement
to be registered with or approved by such other governmental
agencies, authorities and the board of directors and
stockholders of the Company as may be necessary to enable the
seller or sellers thereof to consummate the disposition of
such Registrable Securities;
(ix) furnish to each seller of Registrable Securities
a signed counterpart, addressed to such seller (and
underwriters, if any), of:
(A) an opinion of counsel for the Company,
dated the effective date of such registration
statement (and, if such registration includes an
underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably
satisfactory in form and substance to such seller
(which shall be deemed to be acceptable if it is
accepted by the underwriters), and
(B) a "comfort" letter, dated the effective
date of such registration statement (and, if such
registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement), signed by the independent
public accountants who have certified the Company's
financial statements included in such registration
statement,
in each case covering substantially the same matters with
respect to such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of
securities and, in the case of the accountants' letter, such
other financial matters, and, in the case of the legal
opinion, such other legal matters, as such seller may
reasonably request;
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<PAGE> 14
(x) notify each seller of Registrable Securities
promptly: (A) when a registration statement, prospectus, or
other offering material or any supplement or amendment thereto
has been filed, and, with respect to a registration statement
or any post-effective amendment, when the same has become
effective under the Securities Act and each applicable state
law, (B) of any request by the Commission or any other federal
or state governmental authority for amendments or supplements
to a registration statement, or related prospectus (or other
legally required offering material) or for additional
information, (C) of the issuance by the Commission or any
other federal or state governmental body or agency of any
action, including, without limitation, a stop order,
suspending or withdrawing the authorization for the offering
or the effectiveness of a registration statement, or the
initiation of any proceedings for that purpose, (D) if at any
time the representations or warranties of the Company
contained in any agreement relating to an offering of
Registrable Securities cease to be true and correct, (E) of
the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (F) of the discovery that, or of
the happening of any event as a result of which, the
registration statement, related prospectus, other offering
materials or any document incorporated or deemed to be
incorporated therein by reference includes an untrue statement
of a material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that requires the making
of any changes in such registration statement, prospectus, or
other offering materials so that, in the case of the
registration statement, it will not contain any 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 that in the case of the
prospectus, or other offering materials, it will not contain
any 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, in light of the circumstances
under which they were made, not misleading or that such
document otherwise fails to comply with applicable laws, and
(G) of the Company's reasonable determination that a
post-effective amendment to a registration statement would be
appropriate;
(xi) at the request of the Requisite Holders,
promptly: (A) prepare and furnish to each seller a reasonable
number of copies of a supplement to or an amendment of the
prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such
prospectus shall not include 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 (B) prepare, file with the Commission, and
furnish to each seller the appropriate post-effective
amendment;
(xii) otherwise use reasonable efforts to comply with
all applicable rules and regulations of the Commission,
including, without limitation, compliance with any required
registrations under the Exchange Act, and make available to
its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months,
but not more than 18 months, beginning with the first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the
provisions of
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Section 11(a) of the Securities Act, and shall furnish to each
such seller at least five business days prior to the filing
thereof a copy of any amendment or supplement to such
registration statement or prospectus and shall not file any
thereof to which any such seller shall have reasonably
objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of
the Securities Act or of the rules or regulations thereunder;
(xiii) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by
such registration statement from and after a date not later
than the effective date of such registration statement;
(xiv) use reasonable efforts to list all Registrable
Securities covered by such registration statement on any
national securities exchange or inter-dealer quotation system
on which any shares of the capital stock of the Company of the
same class as the Registrable Securities are then listed;
(xv) cooperate with the underwriters with respect to
all roadshows and other marketing activities as may be
reasonably requested by the underwriters; and
(xvi) enter into such agreements and take such other
actions as the Requisite Holders shall reasonably request in
order to expedite or facilitate the disposition of such
Registrable Securities.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
Each holder of Registrable Securities agrees, by acquisition of such
Registrable Securities, that upon receipt of any notice from the Company of the
happening of any event of the kind described in clause (B) or (F) of Section
2.3(x) above, such holder will forthwith discontinue such holder's disposition
of Registrable Securities pursuant to the registration statement relating to
such Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.3(xi) above and, if
so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such holder's
possession of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice.
2.4. Incidental Offering Procedures. If and whenever the Company is
required to use reasonable efforts to effect the registration of any Registrable
Securities under the Securities Act, as provided in Section 2.2 above, the
Company shall as expeditiously as possible:
(i) a reasonable time before filing a registration statement
or prospectus or any amendments or supplements thereto, furnish to the
Owners of Registrable Securities and to one counsel selected by the
holders of a majority of the Registrable Securities included
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<PAGE> 16
pursuant to Section 2.2 above (and one separate counsel for each such
Owner if paid for by such Owner), copies of all such documents proposed
to be filed, which documents will be subject to the review of the
Owners of such Registrable Securities and to such counsel solely for
the purposes of reviewing such material in connection with the Owner's
decision of whether to continue to participate in the offering in
accordance with the terms of this Agreement and reporting to the
Company on a timely basis any inaccuracies with respect to information
regarding the Owners of such Registrable Securities contained in such
material, and the Company shall thereafter furnish revised drafts and
definitive versions of all such documents to the Owners of such
Registrable Securities and to such counsel when they are circulated to
the working group for the registration, and after the filing of the
registration statement, the Company shall promptly notify the counsel
to the Owners of Registrable Securities of comments received from the
Commission, or the securities exchange or market or inter-dealer
quotation system, and other governmental authorities as may be
applicable;
(ii) use all commercially reasonable efforts (A) to include
the Registrable Securities to be included in the offering in the
registration statement, or other appropriate offering materials for the
type of Piggyback Registration, (B) to include the Registrable
Securities to be included in the Piggyback Registration in any
registration of securities to be sold in the offering otherwise being
made with any governmental authority under state securities or blue sky
laws or other applicable securities laws, and (C) to maintain such
inclusion for such period as such registration statement, or other
appropriate materials for the type of Piggyback Registration and such
registration or qualification are otherwise maintained by the Company
for the Person initiating the Piggyback Registration;
(iii) furnish without charge to the Owners of such Registrable
Securities the number of copies of the registration statement, each
amendment and supplement thereto (in each case including all exhibits
thereto), the prospectus included in the registration statement
(including, without limitation, each summary or preliminary prospectus
or other legally required offering materials), in conformity with the
requirements of the Securities Act and other applicable laws, all
documents incorporated by reference into such prospectus or
registration statement, and such other documents as the Owner of such
Registrable Securities may reasonably request in order to facilitate
the disposition of the Registrable Securities included in the offering;
(iv) notify the Owners of such Registrable Securities (A) of
the issuance by the Commission or any other federal or state
governmental body or agency of any action, including, without
limitation, a stop order, suspending or withdrawing the authorization
for the offering or the effectiveness of a registration statement, or
the initiation of any proceedings for that purpose, and (B) if the
Person initiating the Piggyback Registration determines to cease using
a registration statement, prospectus or other offering document because
of either the issuance by the Commission or any other federal or state
governmental body or agency of a stop order or the discovery of a
material misstatement or omission, to suspend the use of a registration
statement, prospectus or other offering document upon receipt of such
notification;
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<PAGE> 17
(v) notify the counsel to the Owners of such Registrable
Securities promptly (A) when a registration statement, prospectus, or
other offering material for the Piggyback Registration or any
supplement or amendment thereto has been filed, and with respect to a
registration statement or any post-effective amendment, when the same
has become effective under the Securities Act and each applicable state
or foreign law, (B) of any request by the Commission or any other
federal or state governmental authority for amendments or supplements
to such registration statement, or related prospectus (or other legally
required offering material) or for additional information, (C) of the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (D)
of the Company's determination that a post-effective amendment to a
registration statement would be appropriate;
(vi) cooperate in good faith to facilitate the timely delivery
of certificates representing the Registrable Securities to be sold;
(vii) use all commercially reasonable efforts to include the
Registrable Securities to be included in the offering in any
underwriting agreement and listing applications as otherwise are
entered into for the securities of the Person initiating the Piggyback
Registration;
(viii) make available for inspection by the Owners of
Registrable Securities all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
as shall be reasonably necessary to enable them to exercise their due
diligence investigation responsibility, if any; cause the Company's
officers, directors, examiners, accountants, attorneys, employees and
subsidiaries to supply all information reasonably requested by any such
Owners of Registrable Securities in connection with such registration
statement; and cooperate and assist in the performance of any due
diligence investigation by such Owners;
(ix) use best efforts to obtain a comfort letter or comfort
letters from the Company's independent public accountants in customary
form and covering such matters covered by comfort letter or comfort
letters, if any, delivered to the managing underwriter, addressed to
each of the Owners of Registrable Securities; and
(x) furnish to each of the Owners of Registrable Securities a
signed legal opinion, addressed to each of the Owners of Registrable
Securities, of counsel for the Company, dated the date of the closing
of the underwriting or purchase agreement for the Piggyback
Registration, in form and substance equivalent to that counsel's
opinion, if any, to the underwriters in the offering.
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<PAGE> 18
2.5. Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 2.1 above, the Company and all sellers of
Registrable Securities to be included in such offering will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be satisfactory in substance and form to the Company and the Requisite
Holders and the underwriters and to contain such representations and warranties
by the Company and such other terms as are generally prevailing in agreements of
this type, including, without limitation, indemnities to the effect and to the
extent provided in Section 2.8 below. A holder of Registrable Securities to be
distributed by such underwriters shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required by law and other than
indemnification of the Company and underwriters for liabilities arising from
information furnished in writing by such holder specifically for use in the
registration statement.
(b) Incidental Underwritten Offerings. If requested by the underwriters
for any underwritten offering by the Company or by holders of Registrable
Securities pursuant to a registration pursuant to Section 2.2 above, the Company
and all sellers of Registrable Securities to be included in such offering will
enter into an underwriting agreement with the underwriters for such offering,
such agreement to be satisfactory in substance and form to (i) the Company, and
(ii) the Requisite Holders, if the offering is pursuant to a Demand Request made
by an Owner of Registrable Securities pursuant to Section 2.1 above, and such
underwriters and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 2.8 below. A holder of Registrable Securities to be
distributed by such underwriters shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required by law and other than
indemnification of the Company and underwriters for liabilities arising from
information furnished in writing by such holder specifically for use in the
registration statement.
2.6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, and their counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such holders' counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
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<PAGE> 19
2.7. Additional Rights of Owners. If any registration statement
prepared under this Agreement refers to any Owner by name or otherwise as the
holder of any securities of the Company, then such Owner shall have the right to
require (a) the insertion therein of language, in form and substance
satisfactory to such Owner, to the effect that the holding by such Owner of such
securities does not necessarily make such Owner a "controlling person" of the
Company within the meaning of the Securities Act and is not to be construed as a
recommendation by such Owner of the investment quality of the Company's debt or
equity securities covered thereby and that such holding does not imply that such
Owner will assist in meeting any future financial requirements of the Company,
or (b) in the event that such reference to such Owner by name or otherwise is
not required by the Securities Act or any rules and regulations promulgated
thereunder, the deletion of the reference to such Owner.
2.8. Indemnification.
(a) Indemnification by the Company. In the event of any registration of
any securities of the Company under the Securities Act, the Company will, and
hereby does, indemnify and hold harmless the seller of any Registrable
Securities covered by such registration statement, and the officers, directors,
agents, attorneys, general and limited partners, affiliates, accountants and
employees of the seller of any such Registrable Securities, each other Person
who participates in the offering or sale of such securities and each other
Person, if any, who controls such seller, within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which such seller or any such director or officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse such seller and each such officer, director, agent,
attorney, general and limited partner, affiliate, accountant and employee, and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller specifically stating
that it is for use in the preparation thereof; and provided further, that the
Company shall not be liable to any Person who participates as an underwriter in
the offering or sale of Registrable Securities or any other Person, if any, who
controls such underwriter within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to
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<PAGE> 20
the Person asserting an untrue statement or alleged untrue statement or omission
or alleged omission at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, underwriter or controlling person and shall
survive the transfer of such securities by such seller.
(b) Indemnification by the Sellers. In the event of any registration of
any securities of the Company under the Securities Act, each of the sellers of
Registrable Securities covered by such registration statement will, and hereby
does, indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 2.8(a) above) the Company, each director of the Company,
each officer of the Company and each other Person, if any, who controls the
Company within the meaning of the Securities Act, to the same extent as the
foregoing indemnity from the Company to the seller of Registrable Securities,
but only with respect to information furnished in writing to the Company by the
seller of Registrable Securities expressly for use in any registration
statement, prospectus or other offering materials relating to the Registrable
Securities. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in Section 2.8(a) or (b) above, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under
Sections 2.8(a) and (b) above, except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that specified in
this Section 2.8 (with appropriate modifications) shall be given by the Company
and each seller of Registrable Securities with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority other than the Securities Act.
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<PAGE> 21
(e) Indemnification Payments. The indemnification required by this
Section 2.8 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
2.9. Adjustments Affecting Registrable Securities. The Company will not
effect or permit to occur any combination or subdivision which would adversely
affect the ability of the holders of Registrable Securities to include such
Registrable Securities in any registration of its securities contemplated by
this Agreement or the marketability of such Registrable Securities under any
such registration.
2.10. Holdback Agreement. If the Company, at any time pursuant to
Section 2.1 or 2.2 above, shall register under the Securities Act Registrable
Securities held by Owners for sale to the public pursuant to an underwritten
offering, the Company shall not, without the prior written consent of the
Majority Holders, effect any public sale or distribution of securities similar
to those being registered, or any securities convertible into or exercisable or
exchangeable for such securities, for such period as shall be determined by the
managing underwriters, which period shall not begin more than 10 days prior to
the effectiveness of the registration pursuant to which such public offering
shall be made and shall not last more than 90 days after the closing of the sale
of securities pursuant to such registration.
2.11. Lock-Up Period. If the Company at any time shall register any of
its securities under the Securities Act in a primary underwritten offering (a)
pursuant to an Initial Secondary Offering or (b) pursuant to any other
registration, the Owners shall not sell, make any short sale of, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those Registrable Securities included in such registration) without
the prior written consent of the Company for a period as shall be determined by
the managing underwriter of such offering, which period cannot begin more than
10 days prior to the effectiveness of such registration and cannot last more
than 180 days after the effective date of such registration for the Company's
Initial Secondary Offering and 90 days for all other registrations (provided,
however, that the Owners shall not be prevented from selling their respective
Registrable Securities pursuant to this Section 2.11 more than once in any 12
consecutive month period).
2.12. Third Party Registration Rights. The Company has not granted
demand or piggyback registration rights to any party other than the Owners of
Registrable Securities, except pursuant to the Midland Agreement.
2.13 Decisions within a Group of Holders. Any time a specified group of
Owners (e.g. the Vista Holders, the Individual Vista Holders or the Prize
Holders) has certain rights under this Section 2, any decision or election to be
made by that group of Owners shall be made by a majority in interest of the
members of that group, except that, while Hill is a holder of Registrable
Securities, all decisions of the Individual Vista Holders shall be made by Hill.
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<PAGE> 22
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
COMMISSION: The Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Exchange Act shall include
a reference to the comparable section, if any, of any such similar
Federal statute.
HILL: C. Randall Hill, one of the Individual Vista Holders.
INDIVIDUAL VISTA HOLDERS: The Vista Holders other than Natural Gas
Partners II, L.P. and Natural Gas Partners III, L.P.
INITIAL SECONDARY OFFERING: The first offering and sale by the
Company of newly issued shares of the common stock of the Company,
by Pioneer of shares of the common stock of the Company in an
underwritten offering, or both, in the United States following the
date of this Agreement pursuant to a registration statement filed
and declared effective under the Securities Act (other than a
registration of securities with respect to an employee benefit,
retirement or similar plan, a Rule 145 transaction or pursuant to
the Midland Agreement).
MAJORITY HOLDERS: At any time, the holder or holders of more than
50% of all Registrable Securities then outstanding.
MIDLAND AGREEMENT: That certain Registration Rights Agreement for
Midland Holders dated October 28, 1998, between the Company and
certain holders of warrants to purchase shares of common stock of
the Company.
PERSON: A corporation, an association, a partnership, a limited
liability company, a business, an individual, a governmental or
political subdivision thereof or a governmental agency.
PIONEER: Pioneer Natural Resources USA, Inc., a Delaware
corporation.
PRIZE HOLDERS: Pioneer and those other Owners who are identified as
such on Exhibit A hereto, all of which were stockholders of Prize
prior to consummation of the Merger.
REGISTRABLE SECURITIES: Any of the common stock of the Company owned
by an Owner or issuable to an Owner upon conversion of Series A
Preferred Shares or upon
-22-
<PAGE> 23
exercise of any Warrants, any Warrants owned by an Owner and any
securities issued or issuable with respect to any such common stock
or Warrants by way of distribution or in connection with any
reorganization or other recapitalization, merger, consolidation or
otherwise. As to any particular Registrable Securities, once issued,
such securities shall cease to be Registrable Securities 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) the Owner shall have sold such
securities to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) such securities have been
otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not
require registration or qualification under the Securities Act or
any similar state law then in force, (d) such securities represent
less than 5% of the issued and outstanding common stock of the
Company and are able to be sold under Rule 144(k) (or successor
Rule) under the Securities Act without restriction, or (e) such
securities shall have ceased to be outstanding.
REGISTRATION EXPENSES: All expenses incident to the Company's
performance of or compliance with Section 2.1 and 2.2 above,
including, without limitation, all registration, filing and National
Association of Securities Dealers fees, all fees and expenses of
complying with applicable laws (including, without limitation,
securities or blue sky laws), all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent
public accountants, including, without limitation, the expenses of
any special audits or "cold comfort" letters required by or incident
to such performance and compliance, the fees and disbursements of
one special counsel to the holders of Registrable Securities,
premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable
Securities being registered, the fees and expenses of any special
experts, including independent petroleum engineers, retained by the
Company in connection with such offering, the fees and expenses of
any qualified independent underwriter or other independent appraiser
participating in any offering pursuant to the Conduct Rules of the
National Association of Securities Dealers, Inc., all travel
expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the offered securities, and
any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding Selling Expenses, if
any; provided, that, in any case where Registration Expenses are not
to be borne by the Company, such expenses shall not include salaries
of Company personnel or general overhead expenses of the Company,
auditing fees, premiums or other expenses relating to liability
insurance required by underwriters of the Company or other expenses
for the preparation of financial statements or other data normally
prepared by the Company in the ordinary course of its business or
which the Company would have incurred in any event.
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<PAGE> 24
REQUISITE HOLDERS: With respect to any registration of Registrable
Securities, any holder or holders of more than 50% of the
Registrable Securities to be so registered.
SECONDARY OFFERING DATE: The first anniversary date of the Initial
Secondary Offering, or such earlier date on which an investment
banking firm selected by mutual agreement of the Company and Pioneer
determines that market conditions are favorable for another
secondary offering of Registrable Securities.
SECURITIES ACT: The Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder,
as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference
to the comparable section, if any, of any such similar Federal
statute.
SELLING EXPENSES: Underwriting discounts and commissions and stock
transfer taxes relating to Registrable Securities owned by selling
holders being registered by the Company and the fees and
disbursements paid to representatives retained by holders of
Registrable Securities to be registered (including, without
limitation, the fees and disbursements of legal counsel to the
holders of such Registrable Securities, other than the one special
counsel referred to in the definition of Registration Expenses).
SERIES A PREFERRED SHARES: The shares of the Company's Series A 6%
Convertible Preferred Stock issued in the Merger to Pioneer as
holder of shares of Prize's Series A 6% Convertible Preferred Stock.
VISTA HOLDERS: Those Owners who are identified as such on Exhibit A
hereto, all of whom were stockholders of the Company prior to
consummation of the Merger.
WARRANTS: The warrants owned by the Vista Holders as of the date
hereof that are exercisable to purchase shares of common stock of
the Company.
4. Rule 144 and Rule 144A: The Company shall file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder and shall take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements. After any sale
of Registrable Securities pursuant to this Section 4, the Company shall, to the
extent allowed by law, cause any restrictive legends to be removed and any
transfer restrictions to be rescinded with respect to such
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<PAGE> 25
Registrable Securities. In order to permit the holders of Registrable Securities
to sell the same if they so desire, and Pioneer to sell Series A Preferred
Shares if it so desires, pursuant to Rule 144A promulgated by the Commission (or
any successor to such rule) ("RULE 144A"), the Company shall comply with all
rules and regulations of the Commission applicable in connection with the use of
Rule 144A. Prospective transferees of Registrable Securities and Series A
Preferred Shares that are Qualified Institutional Buyers (as defined in Rule
144A) which would be purchasing such Registrable Securities and Series A
Preferred Shares in reliance upon Rule 144A may request from the Company
information regarding the business, operations and assets of the Company. Within
five business days after receipt by the Company of any such request, the Company
shall deliver to any such prospective transferee copies of annual audited and
quarterly unaudited financial statements of the Company and such other
information as may be required to be supplied by the Company for it to comply
with Rule 144A.
5. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Majority
Holders; provided, however, that any such amendment or consent that would have a
material adverse effect on a particular Owner but would not have a similar
material adverse effect on all Owners generally or would otherwise remove an
Owner as a party to this Agreement shall require the consent of such Owner. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any consent authorized by this Section 5, whether or not such
Registrable Securities shall have been marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any holder
or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of Registrable Securities held by any
holder or holders of Registrable Securities contemplated by this Agreement. If
the beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
7. Notices. All communications provided for hereunder shall be sent by
first-class mail, postage prepaid, return receipt requested, and addressed (a)
if to a party other than the Company, to such party at the address furnished to
the Company by such party, or (b) if to the Company, at 20 East 5th Street,
Suite 1400, Tulsa, OK 74103, Attention: Chairman, or at such other address, or
to the attention of such other officer, as the Company shall have furnished to
each holder of Registrable Securities at the time outstanding by a nationally
recognized commercial delivery service, charges prepaid, or by facsimile (a) if
to a party other than the Company, to such party at the facsimile number
furnished to the Company by such party, or (b) if to the Company, to (918)
582-1547; provided, however, that any such communication to the Company may
also, at the option of any of the parties hereunder, be either delivered to the
Company at its address set forth above or to any officer of the Company.
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<PAGE> 26
8. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the parties hereto other than the Company shall also be for the benefit of
and enforceable by any subsequent holder of any Registrable Securities, subject
to the provisions respecting the minimum numbers or percentages of Registrable
Securities required in order to be entitled to certain rights, or take certain
actions, contained herein. Pioneer shall be able to assign its rights in
connection with a transfer of its shares other than a transfer which makes such
shares cease to be Registrable Securities. In the event of an assignment by
Pioneer of its Registrable Securities, the rights of Pioneer hereunder (a) shall
not be expanded as a result, and (b) shall be exercised by the holders of a
majority in interest of the Registrable Securities originally held by Pioneer.
9. Termination. This Agreement shall terminate when no Registrable
Securities remain outstanding.
10. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof. References herein to
Sections are references to Sections of this Agreement, except as otherwise
indicated.
11. Specific Performance. The parties hereto recognize and agree that
money damages may be insufficient to compensate the holders of any Registrable
Securities for breaches by the Company of the terms hereof and, consequently,
that the equitable remedy of specific performance of the terms hereof will be
available in the event of any such breach.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
13. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. Entire Agreement. This Agreement constitutes the entire agreement
among the parties regarding the subject matter hereof and supersedes all prior
understandings and agreements regarding such matters, including, without
limitation, the Prior Prize Agreement and the Prior Vista Agreement.
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<PAGE> 27
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement or have caused this Agreement to be executed and delivered by their
respective officers thereunto duly authorized as of the date first above
written.
PRIZE ENERGY CORP.
By: /s/ Philip B. Smith
------------------------------------------
Philip B. Smith
Chairman and Chief Executive Officer
NATURAL GAS PARTNERS V, L.P.
By: G.F.W. Energy V, L.P., general partner
By: GFW V, L.L.C., general partner
By: /s/ Kenneth A. Hersh
------------------------------------------
Kenneth A. Hersh, Authorized Member
/s/ Philip B. Smith
- ---------------------------------------------
Philip B. Smith, Trustee of the Philip B.
Smith Revocable Trust Dated July 25, 1994
/s/ Philip B. Smith
- ---------------------------------------------
Philip B. Smith, Trustee of the Scott C. Smith
Irrevocable Trust Dated January 15, 1996
/s/ Philip B. Smith
- ---------------------------------------------
Philip B. Smith, Trustee of the Laura E. Smith
Irrevocable Trust Dated January 15, 1996
/s/ Lon C. Kile
- ---------------------------------------------
Lon C. Kile
/s/ Monica L. Griffin
- ---------------------------------------------
Monica L. Griffin
PIONEER NATURAL RESOURCES
USA, INC.
By: /s/ Mark L. Withrow
- ---------------------------------------------
Mark L. Withrow
Executive Vice President
VISTA ENERGY RESOURCES, INC.
By: /s/ C. Randall Hill
------------------------------------------
C. Randall Hill
Chairman and Chief Executive Officer
NATURAL GAS PARTNERS II, L.P.
By: G.F.W. Energy II, L.P., general partner
By: GFW II, L.L.C., general partner
By: /s/ Kenneth A. Hersh
------------------------------------------
Kenneth A. Hersh, Authorized Member
NATURAL GAS PARTNERS III, L.P.
By: Rainwater Energy Investors, L.P., general partner
By: GFW III, L.L.C., general partner
By: /s/ Kenneth A. Hersh
------------------------------------------
Kenneth A. Hersh, Authorized Member
/s/ Thomas O. Hicks
- ---------------------------------------------
Thomas O. Hicks, Individually
/s/ Thomas O. Hicks
- ---------------------------------------------
Thomas O. Hicks, Trustee of each of the Thomas O. Hicks, Jr. 1984 Trust, the
Mack H. Hicks 1984 Trust, the John A. Hicks 1984 Trust, and the Robert B. Hicks
1984 Trust
/s/ John R. Muse
- ---------------------------------------------
John R. Muse
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<PAGE> 28
/s/ Jack D. Furst
- ---------------------------------------------
Jack D. Furst
/s/ Lawrence D. Stuart, Jr.
- ---------------------------------------------
Lawrence D. Stuart, Jr.
/s/ R. Scott Cohen
- ---------------------------------------------
R. Scott Cohen
/s/ Jerred G. Blanchard, Jr.
- ---------------------------------------------
Jerred G. Blanchard, Jr.
/s/ David A. Spuria
- ---------------------------------------------
David A. Spuria, as Trustee of the Roberts
Children's Trust
/s/ John P. Lewis
- ---------------------------------------------
John P. Lewis
/s/ Warren L. Gray
- ---------------------------------------------
Warren L. Gray
/s/ R. Cory Richards
- ---------------------------------------------
R. Cory Richards
/s/ Steven D. Gray
- ---------------------------------------------
Steven D. Gray
/s/ C. Randall Hill
- ---------------------------------------------
C. Randall Hill
/s/ Leo Gallegos
- ---------------------------------------------
Leo Gallegos
/s/ John Dollahan
- ---------------------------------------------
John Dollahan
/s/ D. Keith Mills
- ---------------------------------------------
D. Keith Mills
/s/ Russell Wickman
- ---------------------------------------------
Russell Wickman
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<PAGE> 29
EXHIBIT A
OWNERS
<TABLE>
<CAPTION>
PRIZE HOLDERS VISTA HOLDERS
<S> <C>
Natural Gas Partners V, L.P. Natural Gas Partners II, L.P.
Philip B. Smith, Trustee of the Philip B. Natural Gas Partners III, L.P
Smith Revocable Trust Dated July 25, 1994
Philip B. Smith, Trustee of the Scott C. Smith Thomas O. Hicks, Individually
Irrevocable Trust Dated January 15, 1996
Philip B. Smith, Trustee of the Laura E. Thomas O. Hicks, Trustee of each of the
Smith Irrevocable Trust Dated January 15, 1996 Thomas O. Hicks, Jr. 1984 Trust, the
Mack H. Hicks 1984 Trust, the John A. Hicks
Lon C. Kile 1984 Trust, and the Robert B. Hicks 1984 Trust
Monica L. Griffin John R. Muse
Pioneer Natural Resources USA, Inc. Jack D. Furst
Lawrence D. Stuart, Jr.
R. Scott Cohen
Jerred G. Blanchard, Jr.
David A. Spuria, as Trustee of the Roberts
Children's Trust
John P. Lewis
Warren L. Gray
R. Cory Richards
Steven D. Gray
C. Randall Hill
Leo Gallegos
John Dollahan
D. Keith Mills
Russell Wickman
</TABLE>
A-1
