EXHIBIT 10.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of January 29, 2003 (the
"Agreement") is by and among St. Mary Land & Exploration Company, a Delaware
corporation ("St. Mary"), and Flying J Oil & Gas Inc., a Utah corporation
("FJOG"), and Big West Oil & Gas Inc., a Utah corporation ("BWOG").
RECITALS
WHEREAS, St. Mary, FJOG and BWOG have entered into that certain
Purchase and Sale Agreement dated as of December 13, 2002 (the "PSA") by and
among FJOG and BWOG, NPC Inc., a Colorado corporation, and St. Mary, whereby
upon the closing of the PSA St. Mary shall issue to FJOG and BWOG a total of
3,380,818 shares (the "Shares") of St. Mary common stock, $0.01 par value per
share (the "St. Mary Stock"); and
WHEREAS, as a condition to the closing of the PSA and in connection
with the issuance of such Shares of St. Mary Stock, St. Mary, FJOG and BWOG have
agreed that St. Mary shall grant to FJOG and BWOG certain registration rights
with respect to the Shares of St. Mary Stock issued under the PSA, under the
terms and conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the PSA, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
Section 1. Certain Definitions. For purposes of this Agreement, the
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following terms shall have the following respective meanings:
(a) "Business Day" shall mean a day other than a Saturday or
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Sunday or any federal holiday in the United States.
(b) "Effectiveness Period" shall have the meaning set forth in
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Section 2(b) hereof.
(c) "Exchange Act" shall mean the Securities Exchange Act of
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1934, as amended.
(d) "Form S-3" shall mean such form under the Securities Act
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as in effect on the date hereof or any registration form under the
Securities Act subsequently adopted by the SEC that permits inclusion
or incorporation of substantial information by reference to other
documents filed by St. Mary with the SEC.
(e) "Holder" shall mean FJOG or BWOG as a holder of
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Registrable Securities, or any transferee or assignee of FJOG or BWOG
pursuant to the provisions of Section 7 hereof.
(f) "Prospectus" shall mean the prospectus included in the
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Shelf Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference
into such Prospectus.
(g) "Registrable Securities" means the Shares of St. Mary
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Stock issued to FJOG and BWOG under the PSA, together with all shares
of St. Mary Stock issued or issuable by St. Mary with respect to such
Shares, until in the case of such Shares the earliest of (i) the
effective registration under the Securities Act and resale in
accordance with the registration statement covering such Shares, (ii)
at such time that such Shares can be sold by the particular Holder (and
any affiliate of the Holder with whom such Holder must aggregate its
sales under Rule 144) in compliance with Rule 144 under the Securities
Act in any three month period without volume limitations and without
registration (and in the event that following the occurrence of the
event set forth in this clause (ii) the Shares for a reason not within
the reasonable control of the Holder fail to be salable as described in
this clause (ii), this clause (ii) shall cease to be of any force or
effect), or (iii) the sale of such Shares to the public under Rule 144.
(h) "Rule 144" shall mean Rule 144 promulgated by the SEC
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under the Securities Act.
(i) "Sale Notice" shall have the meaning set forth in Section
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3(e) hereof.
(j) "Securities Act" shall mean the Securities Act of 1933, as
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amended.
(k) "SEC" shall mean the United States Securities and Exchange
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Commission.
(l) "Shelf Registration Statement" shall have the meaning set
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forth in Section 2(a) hereof.
(m) "Suspension Period" shall have the meaning set forth in
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Section 3(b)(i) hereof.
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(n) "Underwritten Registration" or "Underwritten Offering"
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shall mean a registration or offering in which securities of St. Mary
are sold to an underwriter for reoffering to the public.
(o) "Violation" shall have the meaning set forth in Section
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5(a) hereof.
All other capitalized terms used but not defined herein shall have the
respective meanings given to them in the PSA.
Section 2. Form S-3 Shelf Registration.
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(a) St. Mary shall prepare and file with the SEC a
registration statement on Form S-3 (or, if Form S-3 is not then
available, on such form of registration statement that is then
available to effect a registration of all Registrable Securities held
by the Holders, subject to the consent of the Holders) pursuant to Rule
415 under the Securities Act for the purpose of registering under the
Securities Act all of the Registrable Securities held by the Holders
for resale by, and for the account of, the Holders as selling
stockholders thereunder in order that such registration statement shall
be declared effective by the SEC upon the expiration of two years
following the Closing (the "Shelf Registration Statement"). St. Mary
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shall be obligated to file only one Shelf Registration Statement
pursuant to this Agreement, and shall include all Holders therein.
(b) Subject to Section 3(b)(i) hereof, St. Mary shall use its
best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required pursuant to the
provisions of Section 3(b) hereof to the extent necessary to ensure
that (i) it is available for resales by the Holders and (ii) conforms
with the requirements of this Agreement and the Securities Act and the
rules and regulations of the SEC promulgated thereunder as announced
from time to time for a period (the "Effectiveness Period") of:
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(i) fifteen months after the effective date of the
Shelf Registration Statement; or
(ii) such shorter period, from the effective date of
the Shelf Registration Statement until either of (1) the sale
pursuant to the Shelf Registration Statement of all the
Registrable Securities or (2) at such time that the remaining
Registrable Securities that are unsold by the Holders can be
sold by the Holders (and any affiliates of the Holders with
whom such Holders must aggregate their sales under Rule 144)
in compliance with Rule 144 in any three-month period without
volume limitations and without registration (and in the event
that following the occurrence of the event set forth in this
clause (ii) the Shares for a reason not within the reasonable
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control of the Holder fail to be salable as described in this
clause (ii), this clause (ii) shall cease to be of any force
or effect).
(c) Each Holder shall furnish to St. Mary such information as
St. Mary may reasonably request in writing in connection with the Shelf
Registration Statement, including information regarding such Holder,
the Registrable Securities held by such Holder, and the intended method
of disposition of such securities. Each Holder agrees to furnish
promptly to St. Mary all information required to be disclosed in order
to make information previously furnished to St. Mary by such Holder not
materially misleading.
Section 3. Registration Procedures.
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(a) In connection with the Shelf Registration Statement, St.
Mary shall comply with all the provisions of Section 3(b) hereof and
shall, in accordance with Section 2 hereof, prepare and file with the
SEC a Shelf Registration Statement relating to the registration on an
appropriate form under the Securities Act.
(b) In connection with the Shelf Registration Statement and
any Prospectus required by this Agreement to permit the resale of
Registrable Securities, St. Mary shall:
(i) Subject to any notice by St. Mary in accordance
with this Section 3(b) of the existence of any fact or event
of the kind described in Section 3(b)(iii)(D), use its best
efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence
of any event that would cause the Shelf Registration Statement
or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not be effective and usable
for the resale of Registrable Securities during the
Effectiveness Period, St. Mary shall file promptly an
appropriate amendment to the Shelf Registration Statement or a
report filed with the SEC pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act, in the case of clause (A),
correcting any such misstatement or omission, and, in the case
of either clause (A) or (B), use its best efforts to cause
such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable
thereafter. Notwithstanding the foregoing, St. Mary may
suspend the effectiveness of the Shelf Registration Statement
by written notice to the Holders for a period not to exceed an
aggregate of thirty days in any ninety-day period (each such
period, a "Suspension Period") if:
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(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement
would, in St. Mary's reasonable judgment, contain an
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untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary to make the statements therein not
misleading; and
(y) St. Mary reasonably determines that the
disclosure of such event at such time would have a
material adverse effect on the business of St. Mary
and its subsidiaries, taken as a whole;
provided, that (A) in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede St. Mary's
ability to consummate such transaction, St. Mary may extend a
Suspension Period from thirty days to forty-five days and (B)
the Suspension Periods shall not exceed an aggregate of sixty
days in any 180-day period. Each Holder agrees to hold in
confidence any communication by St. Mary relating to an event
described in Section 3(b)(i)(x) and (y) or Section
3(b)(iii)(D).
(ii) Prepare and file with the SEC such amendments
and post-effective amendments to the Shelf Registration
Statement as may be necessary to keep the Shelf Registration
Statement effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by the Shelf
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the sellers thereof set forth in the Shelf Registration
Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and, in the
case of (A), (B), (C) and (D) below, the Holders, promptly
and, if requested by such persons, to confirm such advice in
writing:
(A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been
filed, and, with respect to the Shelf Registration
Statement or any post-effective amendment thereto,
when the same has become effective,
(B) of any request by the SEC for amendments
to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional
information relating thereto,
(C) of the issuance by the SEC of any stop
order suspending the effectiveness of the Shelf
Registration Statement under the Securities Act or of
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the suspension by any state securities commission of
the qualification of the Registrable Securities for
offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding
purposes, or
(D) of the existence of any fact or the
happening of any event, during the Effectiveness
Period, that makes any statement of a material fact
made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements
therein not misleading.
If at any time the SEC shall issue any stop order suspending
the effectiveness of the Shelf Registration Statement, or any
state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption
from qualification of the Registrable Securities under state
securities or blue sky laws, St. Mary shall use its best
efforts to obtain the withdrawal or lifting of such order at
the earliest practicable time.
(iv) Furnish to one counsel for the Holders and each
of the underwriter(s), if any, before filing with the SEC, a
copy of the Shelf Registration Statement and copies of any
Prospectus included therein or any amendments or supplements
to either of the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference after the
initial filing of the Shelf Registration Statement), which
documents will be subject to the review of such counsel and
underwriter(s), if any, for a period of five Business Days,
and St. Mary shall not file the Shelf Registration Statement
or Prospectus or any amendment or supplement to the Shelf
Registration Statement or Prospectus (other than documents
incorporated by reference) to which such counsel or the
underwriter(s), if any, shall reasonably object within five
Business Days after the receipt thereof. Such counsel or
underwriter, if any, shall be deemed to have reasonably
objected to such filing if the Shelf Registration Statement,
amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or
omission.
(v) Subject to the execution of a confidentiality
agreement reasonably acceptable to St. Mary, make available at
reasonable times for inspection by one or more representatives
of the Holders, any underwriter participating in any
distribution pursuant to the Shelf Registration Statement, and
any attorney or accountant retained by the Holders or any of
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the underwriter(s), all financial and other records, pertinent
corporate documents and properties of St. Mary as shall be
reasonably necessary to enable them to exercise any applicable
due diligence responsibilities, and cause St. Mary's officers,
directors, managers and employees to supply all information
reasonably requested by any such representative or
representatives of the Holders, underwriter, attorney or
accountant in connection with the Shelf Registration Statement
after the filing thereof and before its effectiveness;
provided, however, that any information designated by St. Mary
as confidential at the time of delivery of such information
shall be kept confidential by the recipient thereof.
(vi) If requested by the Holders or the
underwriter(s), if any, incorporate in the Shelf Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as the
Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation: (1)
information relating to the "plan of distribution" of the
Registrable Securities and (2) any other terms of the offering
of the Registrable Securities; and make all required filings
of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after St. Mary is notified of
the matters to be incorporated in such Prospectus supplement
or post-effective amendment.
(vii) Furnish to the Holders and each of the
underwriter(s), if any, without charge, at least one copy of
the Shelf Registration Statement, as first filed with the SEC,
and of each amendment thereto (and any documents incorporated
by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such person may
request in writing).
(viii) Deliver to the Holders and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such persons reasonably may
request; subject to any notice by St. Mary in accordance with
this Section 3(b) of the existence of any fact or event of the
kind described in Section 3(b)(iii)(D), St. Mary hereby
consents to the use of the Prospectus and any amendment or
supplement thereto by each of the Holders and each of the
underwriter(s), if any, in connection with the offering and
the sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto.
(ix) If an underwriting agreement is entered into and
the registration is an Underwritten Registration, St. Mary
shall:
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(A) upon request, furnish to the Holders and
each underwriter, if any, in such substance and scope
as they may reasonably request and as are customarily
made by issuers to underwriters in primary
underwritten offerings, upon the date of closing of
any sale of Registrable Securities in an Underwritten
Registration:
(1) a certificate, dated the date
of such closing, signed by (y) the President
and (z) the Vice President - Finance of St.
Mary confirming, as of the date thereof,
such matters as such parties may reasonably
request;
(2) opinions, each dated the date
of such closing, of counsel to St. Mary
covering such matters as are customarily
covered in legal opinions to underwriters in
connection with primary underwritten
offerings of securities; and
(3) customary comfort letters,
dated the date of such closing, from St.
Mary's independent accountants (and from any
other accountants whose report is contained
or incorporated by reference in the Shelf
Registration Statement and from whom such a
letter may be obtained), in the customary
form and covering matters of the type
customarily covered in comfort letters to
underwriters in connection with primary
underwritten offerings of securities;
(B) set forth in full in the underwriting
agreement, if any, indemnification provisions and
procedures which provide rights no less protective
than those set forth in Section 5 hereof with respect
to all parties to be indemnified; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Holders pursuant to this clause (ix).
(x) Before any public offering of Registrable
Securities, cooperate with the Holders, the underwriter(s), if
any, and their respective counsel in connection with the
registration and qualification of the Registrable Securities
under the securities or blue sky laws of such jurisdictions as
the Holders or underwriter(s), if any, may reasonably request
and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Shelf Registration
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Statement; provided, however, that St. Mary shall not be
required (A) to register or qualify as a foreign corporation
or a dealer of securities where it is not now so qualified or
to take any action that would subject it to the service of
process in any jurisdiction where it is not now so subject or
(B) to subject itself to taxation in any such jurisdiction if
it is not now so subject.
(xi) Cooperate with the Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws to which the
Registrable Securities are subject); and enable such
Registrable Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s),
if any, may reasonably request at least two Business Days
before any sale of Registrable Securities made by such
underwriter(s).
(xii) Use its best efforts to cause the Registrable
Securities covered by the Shelf Registration Statement to be
registered with or approved by such other United States or
state governmental agencies or authorities as may be necessary
to enable the sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Registrable Securities,
subject to the proviso in clause (x) above.
(xiii) Subject to Section 3(b)(i) hereof, if any fact
or event contemplated by Section 3(b)(iii)(D) hereof shall
exist or have occurred, use its best efforts to prepare a
supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Registrable Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(xiv) Cooperate and assist in any filings required to
be made with the NYSE and in the performance of any due
diligence investigation by any underwriter that is required in
accordance with the rules and regulations of the NYSE.
(xv) Otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC and all
reporting requirements under the rules and regulations of the
Exchange Act.
(xvi) Cause all Registrable Securities covered by the
Shelf Registration Statement to be listed or quoted, as the
case may be, on each securities exchange or automated
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quotation system on which securities issued by St. Mary of the
same series are then listed or quoted.
(xvii) Provide promptly to each Holder upon written
request each document filed with the SEC pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act
after the effective date of the Shelf Registration Statement,
unless such documents are available from EDGAR.
(xviii) If requested by the underwriters in an
Underwritten Offering, make appropriate officers of St. Mary
reasonably available to the underwriters for meetings with
prospective purchasers of the Registrable Securities and
prepare and present to potential investors customary "road
show" materials in a manner consistent with other similar
offerings.
(xix) Use its best efforts to qualify for
registration on Form S-3 or its successor form.
(xx) Otherwise use its best efforts to enable the
Holders to dispose of the Registrable Securities on the most
favorable terms in St. Mary's customary securities trading
market.
(c) Each Holder agrees that, upon receipt of any notice from
St. Mary of the existence of any fact of the kind described in Section
3(b)(iii)(D) hereof, such Holder shall, and shall use its reasonable
best efforts to cause any underwriter(s) in an Underwritten Offering
to, forthwith discontinue disposition of Registrable Securities
pursuant to the Shelf Registration Statement until:
(i) such Holder has received copies of the
supplemented or amended Prospectus contemplated by Section
3(b)(xiii) hereof; or
(ii) such Holder is advised in writing by St. Mary
that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus.
If so directed by St. Mary, each Holder shall deliver to St. Mary (at
St. Mary's expense) all copies, other than permanent file copies then
in such Holder's possession, that the Holder agrees to retain, of the
Prospectus covering such Registrable Securities that was current at the
time of receipt of such notice of suspension.
(d) Each Holder shall furnish to St. Mary in writing such
information regarding such Holder and the proposed distribution by such
Holder of its Registrable Securities as St. Mary may reasonably request
for use in connection with the Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. Each Holder who
intends to be named as a selling Holder in the Shelf Registration
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Statement shall promptly furnish to St. Mary in writing all information
required to be disclosed in order to make information previously
furnished to St. Mary by such Holder not materially misleading and such
other information as St. Mary may from time to time reasonably request
in writing.
(e) Following the effectiveness of the Shelf Registration
Statement, each Holder shall notify St. Mary at least one Business Day
prior to any intended distribution or resale of Registrable Securities
pursuant to the Shelf Registration Statement (a "Sale Notice"), which
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notice shall be effective for twenty Business Days. The purpose of such
Sale Notice is to enable St. Mary to make during such notice period any
required post-effective amendment to the Shelf Registration Statement.
St. Mary shall hold in confidence such Sale Notice and shall not
utilize such information in any other manner for the benefit of itself
or of any other person. Each Holder agrees to hold any communication by
St. Mary in response to a Sale Notice in confidence.
Section 4. Registration Expenses. All expenses incurred in connection
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with St. Mary's performance or compliance with this Agreement, including without
limitation all registration, filing and qualification fees, printing fees and
expenses, accounting fees and expenses, fees and disbursements of counsel for
St. Mary shall be borne by St. Mary. Notwithstanding anything to the contrary
herein, St. Mary shall not be required to pay for: (a) the expenses, fees and
disbursements of counsel for the Holders or any underwriters, or (b) any
underwriting discounts, commissions and transfer taxes incurred in connection
with a resale of Registrable Securities.
Section 5. Indemnification and Contribution.
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(a) Indemnification by St. Mary. To the extent permitted by
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law, St. Mary shall indemnify and hold harmless each Holder, the
officers, directors, stockholders, employees, representatives and
agents of such Holder, legal counsel and accountants for such Holder,
any underwriter (as defined in the Securities Act) for such Holder and
each person, if any, who controls such Holder or underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities (joint
or several) to which they may become subject under the Securities Act,
the Exchange Act or any other federal or state securities law, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based on any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue
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statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements
thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged
violation by St. Mary of the Securities Act, the Exchange Act, any
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state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law; and St.
Mary shall reimburse such Holder, underwriter or controlling person for
any legal or other expenses reasonably incurred, as incurred, in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided that the indemnity agreement in
this Section 5(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of St. Mary (which consent shall not be
unreasonably withheld or delayed), nor shall St. Mary be liable in any
such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based on a Violation that occurs in
reliance on and in conformity with written information furnished
expressly for use in connection with such registration by such Holder,
underwriter or controlling person.
(b) Indemnification by the Holders. To the extent permitted by
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law, each Holder shall indemnify and hold harmless St. Mary, each of
its directors and officers who sign the registration statement, the
stockholders, employees, representatives and agents of St. Mary, legal
counsel and accountants for St. Mary, and each person, if any, who
controls St. Mary within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, any underwriter, any other
Holder and any controlling person of any such underwriter or other
Holder, against any losses, claims, damages or liabilities to which any
of the foregoing persons may become subject, under the Securities Act,
the Exchange Act or any other federal or state securities law, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based on any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in
reliance on and in conformity with written information furnished by
such Holder expressly for use in connection with such registration; and
each such Holder shall reimburse any person intended to be indemnified
pursuant to this Section 5(b), for any legal or other expenses
reasonably incurred, as incurred, by such person in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided that the indemnity agreement in this Section 5(b)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Holder (which consent shall not be unreasonably withheld
or delayed); and provided further that in no event shall any indemnity
by such Holder under this Section 5(b), when aggregated with amounts
contributed, if any, pursuant to Section 5(d), exceed the net proceeds
from the sale of Registrable Securities hereunder received by such
Holder.
(c) Indemnifying Party Can Participate in Defense. Promptly
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after receipt by an indemnified party under this Section 5 of notice of
the commencement of any action (including any governmental action),
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such indemnified party shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 5, deliver to
the indemnifying party notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided that an
indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the reasonable fees and expenses
thereof to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to notify the indemnifying
party within a reasonable time of the commencement of any such action,
if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 5, but the omission to so notify the indemnifying party will
not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 5.
(d) Contribution Where Indemnification Not Available. If the
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indemnification provided in this Section 5 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand
and of the indemnified party on the other in connection with the
statements or omissions that shall have resulted in such loss,
liability, claim, damage or expense, as well as any other relevant
equitable considerations; provided that in no event shall any
contribution by a Holder under this Section 5(d), when aggregated with
amounts paid, if any, pursuant to Section 5(b), exceed the net proceeds
from the sale of Registrable Securities hereunder received by such
Holder. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Underwriting Agreement Shall Control. Notwithstanding the
------------------------------------
foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in
connection with an Underwritten Offering are in conflict with the
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foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) Survival of Indemnification Obligations. The obligations
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of St. Mary and the Holders under this Section 5 shall survive the
completion of any offering of Registrable Securities in a registration
statement under this Agreement, and otherwise.
Section 6. Reports under Exchange Act. With a view to making available
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to the Holders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of St. Mary to the public without registration or pursuant to a
registration on Form S-3, St. Mary agrees to:
(a) Make and keep available adequate current public
information with respect to St. Mary, as contemplated by Rule 144, at
all times;
(b) Take such action as is necessary to enable the Holders to
utilize Form S-3 for the resale of their Registrable Securities;
(c) File with the SEC in a timely manner all reports and other
documents required of St. Mary under the Securities Act and the
Exchange Act;
(d) Furnish to a Holder, so long as the Holder owns any
Registrable Securities, promptly upon request:
(i) a written statement by St. Mary that it has
complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act;
(ii) a copy of the most recent annual or quarterly
report of St. Mary and such other reports and documents so
filed by St. Mary, unless such documents are available from
EDGAR; and
(iii) such other information as may be reasonably
requested in availing any Holder of any SEC rule or regulation
that permits the selling of any such securities without
registration or pursuant to Form S-3; and
(e) Undertake any additional actions reasonably necessary to
maintain the availability of the Shelf Registration Statement or the
use of Rule 144.
Section 7. Assignment of Registration Rights. The rights to cause St.
----------------------------------
Mary to register Registrable Securities under this Agreement may be assigned
(but only with all related obligations) by a Holder to a transferee or assignee
of such Registrable Securities that:
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(a) is a subsidiary, parent or stockholder of a Holder;
(b) is an entity controlling, controlled by or under common
control, or under common investment management, with a Holder,
including without limitation a corporation, partnership or limited
liability company that is a direct or indirect parent or subsidiary of
the Holder; or
(c) is a transferee or assignee of more than fifty percent of
the Registrable Securities;
provided that: (i) St. Mary is, within a reasonable time after such transfer,
notified of the name and address of such transferee or assignee and the
Registrable Securities with respect to which such registration rights are being
assigned; (ii) such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement; and (iii) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act.
Section 8. Subsequent Registration Rights. From and after the date of
--------------------------------
this Agreement, St. Mary may enter into any agreement with any holder or
prospective holder of any securities of St. Mary that would allow such holder or
prospective holder to include such securities in the registration statement
filed under Section 2 hereof, as long as under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not
reduce the amount of the Registrable Securities of the Holders that are
included.
Section 9. Underwritten Offering. The Holders may sell their
-----------------------
Registrable Securities through an Underwritten Offering only with St. Mary's
prior written consent, which consent may not be unreasonably withheld or
delayed. In any such Underwritten Offering the investment bankers and managers
that will administer the offering shall be selected by the Holders, provided
that such investment bankers and managers must be reasonably satisfactory to St.
Mary.
Section 10. Termination of Registration Rights. The registration rights
----------------------------------
granted under this Agreement shall terminate as to a Holder at such time as the
Holder can sell all Registrable Securities held by the Holder (and any affiliate
of the Holder with whom such Holder must aggregate its sales under Rule 144) in
compliance with Rule 144 under the Securities Act in any three-month period
without volume limitations and without registration.
Section 11. Specific Performance. St. Mary hereby acknowledges and
---------------------
agrees that irreparable harm would occur in the event any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached, and that damages would be an inadequate remedy for a
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breach of this Agreement. Therefore, St. Mary agrees that the Holders shall be
entitled to specific relief hereunder, including, without limitation, an order
of specific performance of the terms and provisions of this Agreement, in
addition to any other remedy to which they may be entitled at law or in equity.
Any requirements for the securing or posting of any bond in connection with
obtaining any such remedy are hereby waived.
Section 12. Miscellaneous.
-------------
(a) Notices. All notices, consents, requests, instructions,
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authorizations, approvals, waivers and other communications required or
permitted by this Agreement shall be in writing and shall be deemed
duly given to a party when (i) delivered to the appropriate address by
hand or by nationally recognized overnight courier service (costs
prepaid); (ii) sent by facsimile or e-mail with confirmation of
transmission by the transmitting equipment; or (iii) received or
rejected by the addressee, if sent by certified mail, return receipt
requested, in each case to the addresses, facsimile numbers or e-mail
addresses and marked to the attention of the person (by name or title)
designated in the PSA (or to such other address, facsimile number,
e-mail address or person as a party may designate by notice to the
other parties).
(b) Entire Agreement. This Agreement sets forth the entire
-----------------
understanding of the parties with respect to the subject matter hereof.
(c) Binding Effect. This Agreement shall inure to the benefit
--------------
of, and shall be binding upon, the parties hereto and their respective
successors and permitted assigns (including permitted transferees of
any shares of Registrable Securities). Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than
the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
(d) Assignment. No party may assign its rights or delegate its
----------
obligations hereunder (whether voluntarily, involuntarily, or by
operation of law) without the prior written consent of the other
parties, except as otherwise provided in Section 7 hereof. Any such
attempted assignment shall be null and void.
(e) Further Assurances. The parties agree that at any time and
------------------
from time to time, upon the written request of a party, the parties
will execute and deliver such further documents and do such further
acts and things as reasonably requested to effect the purposes of this
Agreement.
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(f) Amendments. This Agreement may be amended only by an
----------
agreement in writing executed by St. Mary and the Holders of a majority
in interest of the Registrable Securities.
(g) Waiver. The observance of any term of this Agreement may
------
be waived only with the written consent of the party to be bound by
such waiver. No failure on the part of a party to exercise any right or
remedy shall operate as a waiver thereof.
(h) Governing Law. This Agreement shall be governed by and
--------------
construed and interpreted in accordance with the laws of the State of
Colorado, without regard to any conflict of laws provisions thereof,
except that the Delaware General Corporation Law shall govern as to
matters of corporate law pertaining to St. Mary and the Utah Revised
Business Corporation Act shall govern as to matters of corporate law
pertaining to FJOG and BWOG.
(i) Jurisdiction and Venue. The parties hereto agree that any
----------------------
actions, suits or proceedings arising out of or relating to this
Agreement, the transactions contemplated hereby or any document
referred to herein shall be brought solely and exclusively in the
courts of the State of Colorado located in the City and County of
Denver, Colorado and/or the courts of The United States of America
located in the City and County of Denver, Colorado (and the parties
agree not to commence any action, suit or proceeding relating thereto
except in such courts), and further agree that service of any process,
summons, notice or document by U.S. registered mail to the respective
addresses referred to in Section 12(a) hereof shall be effective
service of process for any such action, suit or proceeding brought
against any party in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby, in the courts of the State of
Colorado or The United States of America located in the City and County
of Denver, Colorado, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(j) Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable under applicable law,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the term, provision,
covenant or restriction that is held to be invalid, void or
unenforceable shall be modified so that it accomplishes to the maximum
extent possible the original business purpose of such term, provision,
covenant or restriction in a valid and enforceable manner.
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(k) Attorney Fees. If any action at law or in equity is
--------------
necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney fees,
costs and necessary disbursements in addition to any other relief to
which such party may be entitled.
(l) Adjustments in Capitalization. The Registrable Securities
-----------------------------
subject to this Agreement shall be subject to proportionate and
appropriate adjustment in the event of any change in the number of
outstanding shares of St. Mary Stock that occurs by reason of a stock
dividend or split, recapitalization, reclassification, or other similar
change in capitalization by St. Mary.
(m) Headings. The headings, subheadings and other captions of
--------
this Agreement are for convenience and reference only and shall not be
used in interpreting, construing or enforcing any of the provisions of
this Agreement.
(n) Counterparts and Facsimile Signatures. This Agreement may
-------------------------------------
be executed in any number of counterparts, and signature pages may be
delivered by facsimile transmission.
[Signature page follows]
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed on behalf of each of the parties hereto by their duly authorized
representatives as of the date first above written.
ST. MARY:
ST. MARY LAND & EXPLORATION COMPANY,
a Delaware corporation
By:/s/ MILAM RANDOLPH PHARO
--------------------------------------
Milam Randolph Pharo, Vice President -
Land and Legal
HOLDERS:
FLYING J OIL & GAS INC.,
a Utah corporation
By:/s/ JOHN R. SCALES
--------------------------------------
John R. Scales, President
BIG WEST OIL & GAS INC.,
a Utah corporation
By:/s/ JOHN R. SCALES
--------------------------------------
John R. Scales, President
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