Exhibit 10.2


 


PARTICIPATION AGREEMENT


 


RELATING TO


 


EAST TEXAS BOSSIER - MARGARITA


 


This PARTICIPATION AGREEMENT
(this “Agreement”) is made and
entered into as of October 23, 2007 (the “Effective
Date”), by and among the Parties (as defined below).


 


FOR AND IN CONSIDERATION OF
the mutual covenants, rights, and obligations set forth in this Agreement, the
benefits to be derived from them, and other good and valuable consideration,
the receipt and the sufficiency of which are hereby acknowledged, the Parties agree
as follows:


 


ARTICLE I

DEFINITIONS


 


1.01         Certain
Definitions.  As used in
this Agreement, the following terms have the following meanings:


 


“Acquisition Costs” means (i) with
respect to any Designated Property relating to a Lease that was owned by
CWEI prior to the date such property became subject to this Agreement, the fair
market value of the portion of such Lease that is attributable to such
Designated Property as of the date it became subject to this Agreement, and (ii) with
respect to any Designated Property relating to a Lease that was acquired by
CWEI on or after the date such Designated Property became subject to this
Agreement, the portion of the costs of acquiring such Lease (including,
without limitation, direct costs of seismic data and interpretation, lease
broker services, title examinations, filing fees, and recording costs) that is
attributable to the Designated Property.


 


“Affiliate” means, when used with reference
to a specified Person, (a) any Person directly or indirectly owning, controlling
or holding power to vote 50% or more of the outstanding voting securities of
the specified Person, (b) any Person 50% or more of whose outstanding
voting securities are directly or indirectly owned, controlled or held with
power to vote by the specified Person, (c) any Person directly or
indirectly controlling, controlled by or under common control with the
specified Person, (d) if the specified Person is a corporation, any
officer or director of the specified Person or of any corporation directly or
indirectly controlling that specified Person, (e) if the specified Person
is a partnership, any general partner or if the general partner is a
partnership, the general partners of that partnership, and (f) if the
specified Person is an individual, such individual’s spouse and natural and
adoptive lineal descendants and trusts for the benefit of any such
Persons.  For purposes of this
definition, the ability through share ownership or contractual arrangement to
elect or cause the election of a majority of the board of directors of a
corporation shall constitute “control.”


 


“Agreed Rate” means 4.41 % per annum.


 

















 


“Agreement” means this Participation
Agreement, as amended or restated from time to time.


 


“Area of Interest” means the area described
in Exhibit B, as such may amended from time to time by CWEI.


 


“Capital Account” has the meaning set forth
in Section 5.03.


 


“Code” means the Internal Revenue Code of
1986, as amended.


 


“Contribution Date” has the meaning set forth in Section 5.04(b).


 


“Contribution Notice” has the meaning set forth in Section 5.04(b).


 


“CWEI” means Clayton Williams Energy, Inc.,
a Delaware corporation.


 


“CWEI Counsel” has the meaning set forth
in Section 8.12.


 


“Designated Property” means an undivided 5% of CWEI’s
interests in the Wells.


 


“Event of Forfeiture” has the meaning set forth in Section 4.04.


 


“Indemnified Person” has the meaning set
forth in Section 8.11.


 


“Interest” means an interest in
Designated Property under this Agreement. 
The number of Interests owned by each Participant and the total number
of Interests in this Agreement are set forth on Exhibit A, as
amended from time to time.


 


“Lease” means a lease, mineral
interest, royalty or overriding royalty, fee right, mineral servitude, license,
concession or other right covering oil, gas and related hydrocarbons (or a
contractual right to acquire such an interest) or an undivided interest therein
or portion thereof, together with all appurtenances, easements, permits,
licenses, servitudes and rights-of-way situated upon or used or held for future
use in connection with such an interest or the exploration, development or
production thereof, in each case, in the Area of Interest.  A “Lease” shall also mean and include all
rights and interests in all lands and interests unitized or pooled therewith
pursuant to any law, rule, regulation or agreement.


 


“Majority in Interest” means a majority of
the Interests held by all Participants.


 


“Non-Contributing
Party” has the meaning set forth in Section 5.04(c).


 


“Operating Agreement” means an agreement
between the operator and non-operating interest owners in a Lease for the
testing, development and operation of a tract of land or Lease for the
exploration and development of oil, gas, minerals or hydrocarbons.


 


“Party” means CWEI or any Participant.


 


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“Participant” means each Person listed as
such on Exhibit A.


 


“Payout” means the earliest calendar month
during which CWEI shall have received cumulative cash proceeds relating to all
Designated Property (but only taking into account proceeds received with
respect to a Designated Property after such Designated Property became subject
to this Agreement) in an aggregate amount equal to the sum of (i) the
Acquisition Costs, Well Costs and other expenses incurred by CWEI relating to
the Designated Property, plus (ii) an annual internal rate of return on
such costs equal to the Agreed Rate.  For
this purpose, each proceed and expense shall be deemed to have been made on the
last day of the month during which it was received or made.


 


“Person” means an individual, corporation,
partnership, limited partnership, limited liability company, business trust or
other legal entity.


 


“Regulations” mean the regulations
promulgated by the United States Department of Treasury pursuant to the
Code.  All references herein to sections
of the Treasury Regulations shall include corresponding provision or provisions
of succeeding, similar, substitute, temporary or final Treasury Regulations.


 


“Tax Partnership” means the relationship
(constituting a tax partnership for federal and applicable state law tax
purposes) between the Parties existing pursuant to this Agreement.


 


“Transfer” means any sale, transfer,
assignment, pledge, encumbrance, hypothecation, gift or disposition of an
Interest in whole or in part, or any rights or benefits to which a holder of an
Interest may be entitled as provided in this Agreement, including, without
limitation, the right to receive distributions in cash or in kind.


 


“Well” means a well in which CWEI  holds a Working Interest derived from its
ownership of one or more Leases in the Area of Interest, as determined in
accordance with Section 8.16. 
The name and location of each “Well” is shown on Exhibit C,
as amended from time to time by CWEI.


 


“Well Costs” means CWEI’s share of costs
pursuant to any Operating Agreement for the drilling, completing, equipping,
deepening or sidetracking a Well, including, without limitation:  (i) the costs of surveying and staking
the Well, the costs of any surface damages and the costs of clearing, coring,
testing, logging and evaluating the Well; (ii) the costs of casing, cement
and cement services for the Well; (iii) the cost of plugging and
abandoning the Well (including standard and customary remediation activities
associated therewith), if it is determined that the Well would not produce in
commercial quantities and should be abandoned; (iv) all direct charges and
overhead chargeable to CWEI with respect to the Well under any applicable
Operating Agreement until such time as all operations are carried out as
required by applicable regulations and sound engineering practices to make such
Well ready for production, including the installation and testing of wellhead
equipment, or to plug and abandon a dry hole; (v) all costs incurred by
CWEI in recompleting or plugging back any Well; (vi) all costs incurred by
CWEI in reworking any Well if the rework is covered by an authority for
expenditure under the applicable Operating Agreement; (vii) all costs


 


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incurred by CWEI in
locating, drilling, completing, equipping, deepening or sidetracking any
enhanced recovery producer or injector Well (including the costs of all
necessary surface equipment such as steam generators, compressors, water
treating facilities, injection pumps, flow lines and steam lines); and (viii) the
costs of constructing production facilities, pipelines and other facilities
necessary to develop property acquired pursuant to the terms hereof and produce,
collect, store, treat, deliver, market, sell or otherwise dispose of oil, gas
and other hydrocarbons and minerals therefrom; provided, that Well Costs
shall not include any Acquisition Costs.


 


“Working Interest” means an operating
interest in a Lease that permits CWEI to explore, develop and produce one or
more properties in the Area of Interest and bear its percentage of the costs
and expenses relating to the maintenance and development of and operations
relating to such properties.


 


1.02         Construction.  Whenever the context requires, the gender of
all words used in this Agreement includes the masculine, feminine and
neuter.  All references to Articles and
Sections refer to articles and sections of this Agreement, and all references
to exhibits are to Exhibits attached to this Agreement, each of which is made a
part of this Agreement for all purposes.


 


ARTICLE II

RELATIONSHIP OF THE PARTIES


 


2.01         Formation
of Tax Partnership; No Partnership for any Other Purpose.  This
Agreement and its attachments are not intended and shall not be construed to
create a joint venture or other partnership (general, limited, or otherwise) or
association or to render the Parties hereto liable as partners.  Each of the Parties hereto hereby agrees that
this Agreement creates a partnership for United States federal and State income
tax purposes only, which Tax Partnership shall be deemed to own the Designated
Property and shall function and exist as set forth in Exhibit D
attached hereto, which is hereby incorporated by reference for all purposes of
this Agreement.  Furthermore, each of the
Parties agrees that it shall not make an election for the Tax Partnership to be
excluded from the application of the provisions of Subchapter K of Chapter 1 of
Subtitle A of the Code (“Subchapter K”)
or any similar provisions of applicable state law; provided, however,
that each Participant acknowledges that CWEI may currently be, or may become in
the future, party to an Operating Agreement relating to one or more of the
Leases and/or Wells that requires each party thereto to make an election to be
excluded from the application of the provisions of Subchapter K and authorizes
CWEI to make such elections in the future on behalf of the Tax Partnership (as
an entity) if necessary to comply with the applicable Operating Agreement.


 


2.02         Purpose.  The purpose for which this Agreement is being
entered is to further align the interests of the Participants with those of
CWEI by permitting the Participants to participate with CWEI in the CWEI oil
and gas production (if any) developed, directly or indirectly, by CWEI and the
Participants.


 


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2.03         Term.  This Agreement shall commence on the
Effective Date and continue in effect until terminated in accordance with Section 7.01.


 


ARTICLE III

MANAGEMENT OF LEASES AND WELLS


 


3.01         Authority
of CWEI.  CWEI shall have
the full and exclusive power and authority to do any and all things necessary,
incidental, proper, advisable or convenient for the furtherance of developing
the Leases and Wells on behalf of the Tax Partnership, including without
limitation:


 


(a)   to determine whether to acquire, hold,
develop or produce properties and other assets and whether, when and on what
terms to farm-out, sell, promote or otherwise transfer any particular prospect,
or any interest therein;


 


(b)   to make all decisions concerning the
desirability of payment, and the payment or supervision of payment, of all
delay rentals, shut-in royalty payments, minimum royalty payments and any other
similar or related payments;


 


(c)   to drill, complete, control, rework,
side-track, redrill, recomplete, produce, plug and/or abandon any or all of the
Wells;


 


(d)   to form and participate in partnerships,
joint ventures or other relationships that it deems desirable;


 


(e)   to make any expenditures and incur any
obligations it deems appropriate;


 


(f)    to acquire (including, without limitation,
to purchase at premium prices when deemed appropriate by CWEI), exchange, sell,
lease, or dispose of any or all Designated Property;


 


(g)   to negotiate, execute, deliver and perform
any contracts, conveyances or other instruments which it considers appropriate
for the implementation of its powers under this Agreement, including, without
limitation, Operating Agreements, unit Operating Agreements and joint
development agreements, and the right to make any and all elections that are
required or necessary under the terms of any agreements;


 


(h)   to borrow money, incur indebtedness or make
guaranties and to secure the same by mortgages, deeds of trust, security
interests, pledges or other liens or encumbrances on all or any part of the
Designated Property;


 


(i)    to acquire and maintain such insurance, if
any, for the benefit of the Parties as it deems appropriate; and


 


(j)    to construct pipelines, drilling and
production platforms and facilities, gas plants, processing plants and other
facilities incidental to the development of the Area of Interest and the
production and marketing of oil and gas therefrom.


 


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(k)   to execute and deliver division orders and
transfer orders upon such terms and conditions and containing such provisions
as CWEI may consider appropriate; and


 


(l)    to control any matters affecting the
Designated Property including the conduct of litigation and other incurring of
legal expenses and the settlement of claims in litigation; provided,
that, CWEI shall not be authorized to settle any claims for which any
Participant has, or may have, any individual liability without the Participant’s
prior written consent.


 


3.02         Duties
and Services of CWEI. 
CWEI shall devote such time and effort to the development of the Leases
and Wells as it shall deem appropriate. 
The Parties acknowledge and agree that neither CWEI nor any Affiliate
thereof nor any of their respective officers, directors, employees or agents
shall be required to devote full time to the development of the Leases and
Wells and may from time to time engage in and possess interests in other
business ventures of any and every type and description, independently or with
others, including without limitation, the ownership, acquisition, exploration,
development, operation and management of oil and gas properties and oil and gas
drilling programs, and that no Participant shall by virtue of this Agreement
have any right, title, interest or expectancy in or to such activities or
ventures.


 


3.03         Operating
Agreements.  CWEI shall
use its reasonable efforts to enter into, and act in accordance with the
provisions of, all applicable Operating Agreements relating to any Lease or
Well.  Following termination of this
Agreement, each Party agrees to become a party to all Operating Agreements in
which CWEI serves as operator, and further agrees to use its reasonable efforts
to become a party to all other applicable Operating Agreements.  To the extent any Party for any reason does
not become a party to an applicable Operating Agreement, such Party agrees to
use its reasonable efforts to act in accordance with the provisions of such Operating
Agreement as if it were a party to such Operating Agreement.


 


ARTICLE IV

ACCESS TO INFORMATION; TRANSFER RESTRICTIONS


 


4.01         Access
to Information.  A
Participant, on written request to CWEI stating the purpose, may examine and
copy, at any reasonable time, for any proper purpose, and at the expense of the
Participant, any information regarding the business affairs and financial
condition of any Designated Property as is just and reasonable for the
Participant to examine and copy. 
Information provided to or obtained by a Participant relating to
Designated Property shall be used by such Participant solely in furtherance of
his or her interests hereunder and shall not be used for any other
purpose.  Participants shall maintain the
confidentiality of all such information and shall not disclose such information
to any other Person.  If a Participant
receives a request to disclose information relating to the Designated Property
or this Agreement under the terms of a subpoena, investigative demand or order
issued by a court or governmental agency, the Participant shall promptly notify
CWEI of the existence, terms and circumstances surrounding such request, so
that CWEI may seek a protective order or confidential treatment of such
information.


 


4.02         Transfer
Restrictions.  Except as
provided in Section 4.03, no Participant shall Transfer his or her
Interests without the prior written consent of CWEI.  Any attempted Transfer


 


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in violation of this Section 4.02
shall be null and void, and CWEI shall refuse to recognize any such Transfer.


 


4.03         Permitted
Transfers; Status as Assignee. 
A Participant may
Transfer all or any portion of his or her Interests to his or her spouse,
parents or natural or adoptive lineal descendants, or to one or more trusts or
partnerships established exclusively for the benefit of his or her spouse,
parents or natural or adoptive lineal descendants; provided, that any
such permitted assignee shall receive and hold such rights subject to the
provisions of this Agreement, including, without limitation, the provisions of
this ARTICLE IV, and as a condition to such Transfer, shall execute and
deliver a written agreement with the Parties agreeing to be bound hereby.  A Participant intending to Transfer Interests
pursuant to this Section 4.03 shall provide at least 10 days prior
written notice of such proposed transfer to CWEI.


 


4.04         Forfeiture
of Interests.  A
Participant shall forfeit any and/or all of his or her Interests held by such
Participant if such Participant admits or enters a plea of no contest to or is
convicted of a felony or misdemeanor offense against CWEI or any of its
Affiliates (“Event of Forfeiture”).


 


4.05         Specific
Performance.  The parties
agree that each Party would be irreparably damaged if any of the provisions of
this ARTICLE IV  are not performed in accordance with their specific
terms and that monetary damages would not provide an adequate remedy in such
event.  Accordingly, it is agreed that,
in addition to any other remedy to which they may be entitled, at law or in
equity, CWEI and any nondefaulting Participant shall be entitled to injunctive
relief to prevent breaches of the provisions of this ARTICLE IV and
specifically to enforce the terms and provisions hereof in any action
instituted in any court of competent jurisdiction.


 


ARTICLE V

SHARING, ALLOCATIONS AND DISTRIBUTIONS


 


5.01         Allocation
of Costs and Expenses. 
All costs and expenses, including Acquisition Costs and Well Costs, relating to
the Designated Property shall be shared as follows: (i) 100% to CWEI
before Payout and (ii) 1% to CWEI and 99% to the Participants after
Payout, apportioned among the Participants in proportion to the percentages
listed on Exhibit A attached hereto.


 


5.02         Allocation
of Revenues.  All revenues
relating to the Designated Property shall be allocated as follows: (i) 100%
to CWEI before Payout and (ii) 1% to CWEI and 99% to the Participants
after Payout, apportioned among the Participants in proportion to the
percentages listed on Exhibit A attached hereto.


 


5.03         Allocations
for Capital Account and Tax Purposes.  An individual capital account (a “Capital Account”) shall be established and
maintained for each Participant as provided in Exhibit D.  Subject to Section 7.02(c), all
items of income, gain, deduction, loss, credit and amount realized shall be
allocated to the Parties in accordance with the provisions of Exhibit D.


 


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5.04         Funding
of Costs and Expenses.


 


(a)           The Parties agree to pay timely the costs and expenses
allocated and charged to them pursuant to Section 5.01 and
elsewhere herein.


 


(b)           To the extent that costs and expenses are allocated and
charged to Participants pursuant to Section 5.01 and elsewhere in
this Agreement, and not retained by CWEI from a distribution to Participants
pursuant to Section 5.05, CWEI shall send written notice to the
Participants (a “Contribution Notice”)
setting forth (i) the date on which such additional funds shall be payable
(the “Contribution Date”), which
date shall be not less than 10 days after the date of the Contribution Notice,
and (ii) the total amount of funds required to be paid by each Participant
pursuant to this Section 5.04. 
The funds required of each Participant shall be in proportion to the
number of Interests held by such Participant.


 


(c)           If a Participant does not pay timely the costs and
expenses allocated and charged to such Participant (a “Non-Contributing Party”) at the time or in
the manner provided in the Contribution Notice, CWEI, in its sole discretion,
may pay the costs and expenses that the Non-Contributing Party failed to pay
within 20 days after the Contribution Notice, in which case the
Non-Contributing Party, without further action on his or her part, shall be deemed
to have assigned to CWEI the economic rights to the Interests held by the
Non-Contributing Party pursuant to this Agreement, and CWEI, as the assignee of
the Non-Contributing Party and the holder of such Interests, shall be entitled
to receive all allocations of income, gain, loss, deduction, credit or similar
items, and all distributions, to which the Non-Contributing Party would
otherwise be entitled from and after the Contribution Date.  CWEI shall hold such Interests attributable
to the Non-Contributing Party until such time as CWEI, as the holder of such
Interests, shall have received distributions pursuant to Section 5.05
in an aggregate amount equal to 200% of the additional funds paid by CWEI
pursuant to this Section 5.04(c), whereupon CWEI, without further
action on its part, shall be deemed to have re-assigned the economic rights to
such Interests to the Non-Contributing Party. 
CWEI may use the power of attorney set forth in Section 8.13
to reflect any assignment pursuant to this Section 5.04(c).  Furthermore, a Non-Contributing Party shall
indemnify and hold harmless each other Party to the fullest extent permitted by
law, from and against the costs and expenses that the Non-Contributing Party
failed to pay, including any losses, costs, liabilities, damages, and expenses
(including, without limitation, costs of suit and attorneys’ fees) paid or
incurred in attempting to collect the costs that the Non-Contributing Party
failed to pay.


 


5.05         Distributions
of Revenues.  Subject to Section 5.04(c),
all revenues relating to the Designated Property shall be distributed to the
Party to whom such revenues are allocated pursuant to Section 5.02;
provided, however, that CWEI shall, in lieu of issuing
Contribution Notices, be entitled to retain from any distribution to any
Participant an amount necessary to discharge the costs and expenses allocated
to such Participant pursuant to Section 5.01 that remains unpaid; provided,
further, that if Payout would occur as a result of a distribution of
cash funds to CWEI, such distribution shall be deemed to constitute two
distributions:  (i) the first
distribution shall consist of the amount of cash funds necessary to cause
Payout to occur, and (ii) the second distribution shall consist of the
balance of the funds then distributed.


 


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5.06         Withholding
Taxes.  CWEI shall at all
times be entitled (but not obligated) to make payments required to discharge
any obligation of CWEI to withhold or make payments to any governmental authority
with respect to any federal, state or local tax liability of any Participant
for such taxes arising out of such Participant’s interest in the Designated
Property.  The amount of each such
payment made by CWEI with respect to any Participant shall be deducted from any
distributions otherwise payable to such Participant pursuant to this
Agreement.  Notwithstanding anything
contained in this Agreement to the contrary, in the event CWEI fails to
withhold any federal, state or local taxes in respect of any Participant when
required to do so (including as a result of any change in law or interpretation
thereof or otherwise) any liability incurred by CWEI (including any interest
and penalties) as a result of such failure shall be borne by such Participant
(and charged to such Participant’s Capital Account), and such Participant shall
indemnify and hold harmless CWEI from and against any and all claims, demands,
liabilities, costs, damages and causes of action of any nature whatsoever
related to such withholding obligation.


 


ARTICLE VI

BOOKS AND RECORDS


 


6.01         Maintenance
of Books and Records.  The
books of account for the
Tax Partnership shall be maintained on an accrual basis in accordance with the
terms of this Agreement, except that the Capital Accounts of the Parties shall
be maintained in accordance with Exhibit D.  The accounting year of the Tax Partnership
shall be the calendar year.


 


ARTICLE VII

TERMINATION


 


7.01         Termination. 
This Agreement shall terminate on the first to occur of the
following:


 


(a)           the third anniversary of Payout;


 


(b)           the election of CWEI, in its sole discretion, to terminate
this Agreement.


 


7.02         Distributions upon Termination.  Upon termination of this Agreement, CWEI
shall distribute all Designated Property (or proceeds therefrom) to the Parties
as follows:


 


(a)           CWEI may sell any or all Designated Property and other
assets, including to Parties, and any resulting gain or loss from each sale
shall be computed and allocated to the Capital Accounts of the Parties in
accordance with Section 7.02(c);


 


(b)           With respect to all Designated Property that has not been
sold, the fair market value of such Designated Property shall be determined by
CWEI and any unrealized income, gain, loss, and deduction inherent in such
property that has not been reflected in the Capital Accounts of the Parties
previously shall be allocated among the Parties in accordance with Section 7.02(c);


 


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(c)           All items of income, gain, loss and deduction referred to
in Sections 7.02(a) and (b) shall be allocated among the
Parties in such a manner as to cause, to the maximum extent possible, the
positive Capital Account balance of each Party to equal the distribution such
Party would receive if the distributions upon liquidation of the proceeds
described in Section 7.02(a) and proceeds equal in amount to
the fair market value of property described in Section 7.02(d) were
made in accordance with Section 5.05 of this Agreement;


 


(d)           Designated Property (and proceeds therefrom) shall then be
distributed among the Parties in accordance with the positive Capital Account
balances of the Parties, as determined after taking into account all Capital
Account adjustments for the taxable year of the Tax Partnership during which
the termination of this Agreement occurs (other than those made by reason of
distributions pursuant to this clause (d)), and those distributions shall be
made by the end of the taxable year of the Tax Partnership during which the
termination of this Agreement occurs (or, if later, 90 days after the date of
the liquidation);


 


(e)           It is intended that the distributions made to each Party
pursuant to this Section 7.02 be equal to the distributions to
which such Party would be entitled if liquidating distributions were made in
accordance with Section 5.05 of this Agreement.  To the extent the Parties’ positive Capital
Account balances after application of Section 7.02(c) do not
correspond to the amounts of such intended distributions, the allocations
provided for in Exhibit D for the taxable year in which the
liquidation occurs shall be adjusted, to the maximum extent possible, to
produce Capital Account balances which correspond to the amount of such
intended distributions.


 


All distributions in kind to
the Participants shall be made subject to the liability of each distributee for
his, her or its allocable share of costs, expenses and liabilities previously
incurred or for which CWEI has committed prior to the date of termination and
those costs, expenses and liabilities shall be allocated to the distributee
under this Section 7.02. The distribution of cash or property to a
Participant in accordance with the provisions of this Section 7.02 constitutes
a complete distribution to the Participant of his, her or its Interests and all
the Designated Property and other assets and constitutes a compromise to which
all Parties have consented. To the extent that a Participant returns funds to
CWEI, it has no claim against any other Party for those funds.


 


7.03         Termination.
On completion of the distribution of Partnership assets as provided in this
Agreement, the Tax Partnership shall be considered terminated.


 


ARTICLE VIII

GENERAL PROVISIONS


 


8.01         Offset.  Whenever CWEI is to pay any sum to any
Participant, any
amounts that Participant owes CWEI or its Affiliates may be deducted from that
sum before payment.


 


8.02         Notices.  All notices, requests or consents required or
permitted to
be given under this Agreement must be in writing and shall be considered as
properly given if mailed by first class United States mail, postage paid, and
registered or certified with return receipt requested, or if delivered to the
recipient in person, by courier or by facsimile transmission.  Notices, requests and consents shall be sent
to a Participant at the address shown on its Signature Page for


 


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Participants  A
Participant may change its address by giving written notice to CWEI.  Any notice, request or consent to CWEI shall
be sent to CWEI at its principal place of business, to the attention of Patti
Hollums.


 


8.03         Entire
Agreement.  This Agreement
constitutes the entire agreement of the Parties relating to the Tax Partnership
and the Designated Property, and supersedes all prior contracts or agreements
with respect thereto, whether oral or written.


 


8.04         Effect
of Waiver or Consent.  A
waiver or consent, express or implied, to or of any breach or default by any
Person in the performance by that Person of its obligations with respect to
this Agreement is not a consent or waiver to or of any other breach or default
in the performance by that Person of the same or any other obligations of that
Person with respect to this Agreement. 
Failure on the part of a Person to complain of any act of any Person or
to declare any Person in default with respect to this Agreement, irrespective
of how long that failure continues, does not constitute a waiver by that Person
of its rights with respect to that default until the applicable statute of
limitations period has run.


 


8.05         Amendment
or Modification.


 


(a)    Except as otherwise provided in this Section 8.05,
any amendment to this Agreement must be proposed by CWEI and approved in
writing by CWEI and at least a Majority in Interest of the Participants within
90 days of its proposal to be effective.


 


(b)   CWEI may amend this Agreement without the
consent of any Participant (i) to remove or correct any inconsistency,
ambiguity or error contained herein, provided that such amendment does not
materially and adversely affect the Participants, (ii) to reflect any
Transfer or forfeiture of Interests pursuant to Sections 4.03 and 4.04 ,
(iii) to amend Exhibit B from time to time to amend the Area
of Interest, or (iv) to amend Exhibit C from time to time to
add additional Wells to become subject to this Agreement.


 


(c)   Upon publication of final regulations in the
Federal Register (or other official pronouncement), CWEI shall have the
authority, without any requirement for consent by any Participant, to amend
this Agreement to the extent CWEI determines, in its sole discretion, is
necessary (a) to provide for the making and filing of any available
election to obtain the benefits of a safe harbor corresponding to that
described under proposed U.S. Treasury Regulations section 1.83-3(1) (or
any similar provision) under which the fair market value of an interest that is
transferred in connection with the performance of services is treated as being
equal to the liquidation value of that interest, and (b) to reflect the
agreement of, and the requirement that, the Tax Partnership and all of the
Parties comply with all of the requirements set forth in such regulations and
Notice 2005-43 (and any other guidance to a substantially similar effect
provided by the IRS with respect to such election) with respect to all
interests transferred in connection with the performance of services while the
election remains effective.


 


8.06         Binding
Effect.  Subject to the
restrictions on Transfers set forth in this Agreement, this Agreement is
binding on and inures to the benefit of the Parties and their respective
successors and assigns.


 


11

















 


8.07         Governing
Law; Severability.  THIS
AGREEMENT IS GOVERNED
BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS,
EXCLUDING ANY CONFLICT OF LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE
GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER
JURISDICTION.  If any provision of this
Agreement or its application to any Person or circumstance is held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of that provision to other Persons or circumstances shall not be
affected and that provision shall be enforced to the fullest extent permitted
by law.


 


8.08         Further
Assurances.  In connection
with this Agreement and
the transactions contemplated by it, each Party shall execute and deliver any
additional documents and instruments and perform any additional acts that may
be necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.


 


8.09         Waiver
of Certain Rights.  Except
for CWEI, each Party irrevocably
waives any right it may have to maintain any action for partition of the
property of the Tax Partnership.


 


8.10         Insurance.  CWEI may purchase and maintain insurance or enter into other
arrangements on behalf of a Participant against any liability asserted against
the Participant and incurred by the Participant in that capacity or arising out
of this Agreement.  In the absence of
actual fraud, the judgment of CWEI as to the terms and conditions of the
insurance or other arrangement and the identity of the insurer or other Person
participating in an arrangement shall be conclusive, and the insurance or other
arrangement shall not be voidable and shall not subject CWEI approving the
insurance or other arrangement to liability, on any ground, regardless of
whether CWEI will be a beneficiary.


 


8.11         Indemnification.


 


(a)           CWEI agrees to indemnify and hold harmless the Participants (each,
an “Indemnified Person”) to the
fullest extent permitted by law, from and against all losses, costs,
liabilities, damages, and expenses (including, without limitation, costs of
suit and attorneys’ fees) paid or incurred in connection with or resulting from
any and all claims, actions or demands against such Indemnified Person that
arise out of or in any way relate to or are incidental to the Tax Partnership,
the Designated Property or the business or affairs of the Tax Partnership that
occurs prior to the termination of this Agreement; provided, however,
that this indemnity shall not extend to (i) any bad faith, willful
misconduct, or gross negligence of such Indemnified Person, or (ii) the
failure of such Indemnified Person to perform any of its obligations under this
Agreement, including without limitation obligations set forth in Sections
5.01, 5.04, and 5.06. 
THE PARTIES INTEND THAT THE INDEMNIFIED PERSONS BE INDEMNIFIED PURSUANT
TO THIS AGREEMENT FROM LIABILITY FOR THEIR OWN SOLE, PARTIAL OR CONCURRENT
NEGLIGENCE.


 


(b)           The indemnification rights contained in this Section 8.11
shall be cumulative of and in addition to any and all other rights,
remedies and recourses to which any Indemnified Person or their respective
heirs, personal representatives, successors and assigns shall be entitled,
whether pursuant to some other provisions of this Agreement, at law or in
equity.


 


12

















 


(c)           CWEI shall advance to any Indemnified Person all reasonable fees, costs
and expenses (including attorneys’ fees and related costs), of defending any
claim, action or demand that arises out of or in any way relates to or is
incidental to the Tax Partnership, the Designated Property, business or affairs
of the Tax Partnership that occurs during any period in which such Indemnified
Person is an employee of CWEI; provided, that such Indemnified Person
agrees in writing to repay to the Tax Partnership all such advances in the
event that it is finally determined that such Indemnified Person is not
entitled to indemnification hereunder with respect to such claim, action or
demand.


 


8.12         CWEI
Counsel.  CWEI has
selected Vinson &
Elkins L.L.P. (“CWEI Counsel”) as
legal counsel to it with respect to this Agreement. Each Participant acknowledges
that CWEI Counsel does not represent such Participant, and that CWEI Counsel
shall owe no duties directly to such Participant.  Each Participant further acknowledges that,
whether or not CWEI Counsel has in the past represented or is currently representing
such Participant with respect to other matters, CWEI Counsel has not advised or
represented the interests of any Participant in the negotiation, preparation,
execution, delivery and performance of this Agreement.


 


8.13         Power
of Attorney.  By the
execution of this Agreement, each Participant does irrevocably constitute and appoint
CWEI, with full power of substitution, as true and lawful attorney-in-fact and
agent with full power and authority to act in such Participant’s name, place
and stead and to execute all documents which such attorney-in-fact deems
necessary or reasonably appropriate in furtherance of this Agreement.


 


8.14         Counterparts.  This Agreement may be executed in any number of
counterparts (including by facsimile transmission) with the same effect as if
all signing parties had signed the same document.  All counterparts shall be construed together
and constitute the same instrument.


 


8.15         No
Employment Contract. 
Nothing contained
in this Agreement shall be construed as conferring upon any Participant who is
or may become an employee of CWEI or any Affiliate of CWEI any right to
continue in the employment of CWEI or any Affiliate of CWEI for any period of
time or interfere with or restrict in any way the rights of CWEI or any Affiliate
of CWEI or such Participant to terminate the employment of such Participant at
any time for any reason (or without any reason) whatsoever, with or without
cause.  For the avoidance of doubt, any
termination of a Participant’s employment with CWEI shall not affect any of
such Participant’s rights pursuant to this Agreement.


 


8.16         Designation
of Wells.  Each of the
Parties hereby agrees that all Wells that are located within the Area of
Interest that are commenced after the date hereof and prior to the Cut-Off Date
shall be subject to this Agreement.  For
purposes of this Agreement, the “Cut-Off
Date” shall be the date that CWEI identifies in a written notice
delivered to each Participant indicating that no Wells within the Area of
Interest commenced after the Cut-Off Date will be made subject to this
Agreement.  Additionally, each
Participant acknowledges that certain circumstances may make it appropriate for
CWEI to deliver such a written notice to the Participants and to enter into
agreements similar to this Agreement with other parties (which may or may not
include certain of the Participants) that relate to Wells that are located in
the Area of Interest but are not subject to this Agreement.


 


13

















 


8.17         Acknowledgement
of 409A Issues.  Notwithstanding anything herein to
the contrary, each Participant (i) acknowledges that this Agreement and
the underlying transactions, as currently structured, may be considered to be a
deferral of compensation under section 409A of the Internal Revenue Code (“section 409A”) and (ii) agrees that
CWEI may, in its own discretion and upon its own initiative and without any
action by or consent of the Participants, if existing or future guidance from
the Internal Revenue Service or other interpretative authority indicates that
such action is necessary or advisable, modify this Agreement and/or restructure
the transactions contemplated by this Agreement in any manner CWEI determines
is appropriate under the circumstances in an effort to avoid any adverse tax
consequences for the Participants and/or CWEI that may otherwise be imposed by
section 409A and the Treasury Regulations thereunder, and the Participants
hereby consent to any such action that may be taken by CWEI and expressly ratify
this Agreement as it may be so amended.


 


[Signature Pages Follow]


 


14

















 


IN WITNESS
WHEREOF, the parties have executed this Participation Agreement as of the
Effective Date.


 


	
   

  	
  CWEI:

  
	
   

  	
   

  
	
   

  	
  CLAYTON WILLIAMS ENERGY,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  //s// L. Paul Latham

  	
   

  
	
   

  	
   

  	
  L. Paul Latham

  
	
   

  	
   

  	
  Executive Vice President

  



 


 


Signature Page For Participant Agreement


 

















 


SIGNATURE PAGE FOR PARTICIPANT


 


The undersigned does hereby
agree to all the terms and provisions of the Participation Agreement,
including, without limitation, the power of attorney set forth in Section 8.13
thereof.


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name of Participant

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Signature

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Fax:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Taxpayer I.D. No.

  
								



 


 


Signature Page For Participant Agreement


 

















 


Exhibit A


 


Participants


 


	
  Participants

  	
   

  	
  Interests
  (%)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Paul Latham

  	
   

  	
  7.75

  	
   

  
	
  Mel Riggs

  	
   

  	
  7.75

  	
   

  
	
  Sam Lyssy

  	
   

  	
  14.50

  	
   

  
	
  Jeff Shultz

  	
   

  	
  9.00

  	
   

  
	
  Greg Wellborn

  	
   

  	
  11.00

  	
   

  
	
  Ed Uzzell

  	
   

  	
  5.00

  	
   

  
	
  Mark Tisdale

  	
   

  	
  3.00

  	
   

  
	
  John Kennedy

  	
   

  	
  7.00

  	
   

  
	
  Jim Wolfshol

  	
   

  	
  4.00

  	
   

  
	
  Ron Gasser

  	
   

  	
  5.50

  	
   

  
	
  Clarence Wolfshohl

  	
   

  	
  4.00

  	
   

  
	
  David Grafe

  	
   

  	
  3.50

  	
   

  
	
  Joe Stembridge

  	
   

  	
  4.00

  	
   

  
	
  Mike Pollard

  	
   

  	
  2.75

  	
   

  
	
  Danny Alford

  	
   

  	
  2.00

  	
   

  
	
  Janet Hamilton

  	
   

  	
  0.75

  	
   

  
	
  Kim Jones

  	
   

  	
  1.00

  	
   

  
	
  Robert Thomas

  	
   

  	
  2.00

  	
   

  
	
  Wilson Beebe

  	
   

  	
  0.75

  	
   

  
	
  Kathy Schwope

  	
   

  	
  0.75

  	
   

  
	
  Dennis Polson

  	
   

  	
  1.00

  	
   

  
	
  Donnie Pruitt

  	
   

  	
  1.00

  	
   

  
	
  Joe Roome

  	
   

  	
  1.00

  	
   

  
	
  Denise Kelly

  	
   

  	
  1.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  100.00

  	
   

  



 


A-1

















 


EXHIBIT B


 


AREA OF INTEREST


 


The Area of Interest shall
be the prospects located in Robertson County, Texas covered by the leases
described below:


 


[The original Exhibit B
contains the legal description of 38 oil and gas leases covering approximately
2,095 gross acres surrounding the Margarita #1 well, which descriptions have
been omitted in this filing.]


 


B-1

















 


EAST TEXAS BOSSIER - MARGARITA


 


EXHIBIT C


 


Wells


 


	
  Well Name

  	
   

  	
  County,
  State

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Such
  other wells as may be

  	
   

  	
   

  
	
  added
  from time to time]

  	
   

  	
   

  



 


C-1

















 


EXHIBIT D


 


Allocations of Profits and Losses and Other Tax
Matters


 


ARTICLE I


 


TAX DEFINITIONS


 


Section 1.01           Definitions. 
All capitalized terms used herein shall have the meanings assigned to
them in the Participation Agreement relating to EAST TEXAS BOSSIER- MARGARITA,
dated October 23, 2007 (the “Agreement”), or as follows:


 


“Adjusted
Capital Account” means the Capital Account maintained for each
Party, (a) increased by any amounts that such Party is obligated to
restore or is treated as obligated to restore under Regulation Sections
1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5)), and (b) decreased
by any amounts described in Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and
(6) with respect to such Party.


 


“Minimum
Gain” has the meaning assigned to that term in Regulation Section 1.704-2(d).


 


“Partnership
Nonrecourse Liability” has the meaning assigned to that term in
Regulation Section 1.752-1(a)(2).


 


“Partner
Nonrecourse Debt” has the meaning assigned to that term in Regulation
Section 1.704-2(b)(4).


 


“Partner
Nonrecourse Deductions” has the meaning assigned to that term in
Regulation Section 1.704-2(i)(1).


 


“Simulated
Basis” has the meaning set forth in Section 5.01(b) of this
Exhibit.


 


“Simulated
Depletion” has the meaning set forth in Section 5.01(b) of
this Exhibit.


 


“Simulated
Gain” has the meaning set forth in Section 5.01(b) of this
Exhibit.


 


“Simulated
Loss” has the meaning set forth in Section 5.01(b) of this
Exhibit.


 


ARTICLE II.


 


REFLECTION OF ACTIVITIES FOR FEDERAL AND STATE TAX PURPOSES


 


Section 2.01           Entity Level Reflection of Activities.  For federal and state tax purposes, but
for no other purpose, all transactions effected by the Parties with respect to
the Designated Property pursuant to the Agreement shall be deemed to have been
effected through the Tax Partnership, rather than by the Parties individually,
as set out in this Article II.


 


D-1

















 


Section 2.02           Receipts, Profits, Income and Gains.  For purposes of applying the provisions
of this Exhibit D, all receipts by any Party in respect of the
Designated Property pursuant to the Agreement shall be deemed first to have
been received by the Tax Partnership and then to have been distributed to such
Party by the Tax Partnership in the manner specified in the Agreement.  All such items shall be taken into account in
computing the Tax Partnership’s gross income and gain or loss, as appropriate,
and shall be allocated among the Parties in accordance with Article III
hereof.


 


Section 2.03           Costs, Expenses, Deductions and Losses.  For purposes of applying the provisions
of this Exhibit D, all costs incurred or payments made by any Party
in respect of the Designated Property pursuant to the Agreement shall be deemed
first to have been received by the Tax Partnership as a contribution by the
Party incurring the cost or making the payment pursuant to the terms of the
Agreement and then to have been paid, incurred or distributed by the Tax
Partnership to the payee or obligee of the cost or the recipient of the
payment.  All such items shall be taken
into account in computing the Tax Partnership’s basis, depreciation, depletion,
gross income, deductible expenses, and/or gain or loss, as appropriate, and
shall be allocated among the Parties in accordance with Article III
hereof.


 


Section 2.04           Contributions and Distributions.  For purposes of applying the provisions
of this Exhibit D, contributions to the Tax Partnership (“Capital
Contributions”) shall include all Acquisition Costs, Well Costs, and any other
costs incurred or payments made in respect of the Designated Property pursuant
to the Agreement.  Similarly, for
purposes of applying the provisions of this Exhibit D,
distributions from the Tax Partnership shall include, in the case of any Party,
all receipts by such Party in respect of the Designated Property pursuant to
the Agreement.


 


Section 2.05           Debt Financing.  For
purposes of applying the provisions of this Exhibit D, unless the
Parties agree otherwise and this Exhibit D is amended to reflect
such agreement, (a) all debt financing incurred by a Party shall be for
the sole account of that Party and shall not be considered debt financing of
the Tax Partnership, and (b) no Tax Partnership asset shall be acquired by
assumption of, or taking subject to, any debt financing.


 


Section 2.06           Record Title.        For
purposes of applying the provisions of this Exhibit D,  (a) all legal title to Designated
Property held by any Party shall be deemed to be held by such Party strictly as
nominee for the Tax Partnership, (b) all assignments made among the
Parties with respect to Designated Property prior to termination of the Tax
Partnership shall be disregarded, and (c) upon termination of the Tax
Partnership each Party holding record title to any Designated Property shall
make such assignments as are required to comply with the provisions of the
Agreement.


 


ARTICLE III


 


ALLOCATIONS OF PROFIT AND LOSS


 


Section 3.01           Allocations for Capital Account and
Tax Purposes.  Subject to Section 7.02
of the Agreement and except as otherwise provided herein, for purposes of any
applicable


 


D-2

















 


federal, state or local
income tax law, rule or regulation items of income, gain, deduction, loss,
credit and amount realized shall be allocated to the Parties as follows:


 


(a)           Income from the sale of oil or gas production and any
credits allowed by Section 29 of the Code relating thereto shall be
allocated in the same manner as proceeds therefrom are allocated and credited
pursuant to Section 5.02 of the Agreement.


 


(b)           Cost and percentage depletion deductions and the gain or
loss on the sale or other disposition of property the production from which is
subject to depletion (herein sometimes called “Depletable
Property”) as computed for tax purposes shall be taken into account
separately by the Parties rather than the Tax Partnership and, except to the
extent and in the manner provided in Section 5.01(b) of this Exhibit D,
shall not affect any Party’s Capital Account. 
For purposes of Section 613A(c)(7)(D) of the Code, the
Tax Partnership’s adjusted basis in each Depletable Property shall be allocated
to the Parties in proportion to each Party’s respective share of the costs and
expenses which entered into the Tax Partnership’s adjusted basis for each
Depletable Property, and the amount realized on the sale or other disposition
of each Depletable Property shall be allocated to the Parties in proportion to
each Party’s respective share of the proceeds from the sale or other
disposition of such property provided for in Section 5.02 of the
Agreement.  For purposes of allocating
amounts realized upon any such sale or disposition which are deemed to be
received for federal or state income tax purposes and are attributable to Tax
Partnership indebtedness or indebtedness to which the Depletable Property is
subject at the time of such sale or disposition, such amounts shall be
allocated in the same manner as Partnership proceeds used for the repayment of
such indebtedness would have been allocated under Section 5.02 of
the Agreement.


 


(c)           Items of deduction, loss and credit not specifically
provided for above (other than loss from the sale or other disposition of
Designated Property), including depreciation, cost recovery and amortization
deductions, shall be allocated to the Parties in the same manner that the costs
and expenses of the Tax Partnership that gave rise to such items of deduction,
loss and credit were allocated pursuant to Section 5.01 of the
Agreement.


 


(d)           Gain from the sale or other disposition of Designated
Property that is not specifically provided for above shall be allocated to the
Parties in a manner which reflects each Party’s allocable share of the revenue
from the sale of the Designated Property provided for in Section 5.02 of
the Agreement, and loss from the sale or other disposition of Designated
Property that is not specifically provided for above shall be allocated to the
Parties in a manner which reflects each Party’s allocable share of the costs
and expenses of the Designated Property provided for in Section 5.01 of
the Agreement.


 


(e)           All recapture of income tax deductions resulting from the
sale or other disposition of Designated Property shall be allocated to the
Party to whom the deduction that gave rise to such recapture was allocated
hereunder to the extent that such Party is allocated any gain from the sale or
other disposition of such property.


 


(f)            Any other items of Tax Partnership income or gain not
specifically provided for above shall be allocated in the same manner as the
revenue that resulted in such income or gain is allocated and credited pursuant
to Section 5.02 of the Agreement.


 


D-3

















 


(g)          Notwithstanding any of the foregoing
provisions of this Section 3.01 to the contrary:


 


(i)            If during any fiscal year of the Tax
Partnership there is a net increase in Minimum Gain attributable to a Partner
Nonrecourse Debt that gives rise to Partner Nonrecourse Deductions, each Party
bearing the economic risk of loss for such Partner Nonrecourse Debt shall be
allocated items of Partnership deductions and losses for such year (consisting
first of cost recovery or depreciation deductions with respect to property that
is subject to such Partner Nonrecourse Debt and then, if necessary, a pro rata
portion of the Tax Partnership’s other items of deductions and losses, with any
remainder being treated as an increase in Minimum Gain attributable to Partner
Nonrecourse Debt in the subsequent year) equal to such Party’s share of Partner
Nonrecourse Deductions, as determined in accordance with applicable
Regulations.


 


(ii)           If for any fiscal year of the Tax
Partnership there is a net decrease in Minimum Gain attributable to Partnership
Nonrecourse Liabilities, each Party shall be allocated items of Tax Partnership
income and gain for such year (consisting first of gain recognized, including
Simulated Gain, from the disposition of Designated Property subject to one or
more Partnership Nonrecourse Liabilities and then, if necessary, a pro rata
portion of the Tax Partnership’s other items of income and gain, and if
necessary, for subsequent years) equal to such Party’s share of such net
decrease (except to the extent such Party’s share of such net decrease is
caused by a change in debt structure with such Party commencing to bear the
economic risk of loss as to all or part of any Partnership Nonrecourse
Liability or by such Party contributing capital to the Tax Partnership that the
Tax Partnership uses to repay a Partnership Nonrecourse Liability), as
determined in accordance with applicable Regulations.


 


(iii)          If for any fiscal year of the Tax
Partnership there is a net decrease in Minimum Gain attributable to a Partner
Nonrecourse Debt, each Party shall be allocated items of Tax Partnership income
and gain for such year (consisting first of gain recognized, including
Simulated Gain, from the disposition of Designated Property subject to Partner
Nonrecourse Debt, and then, if necessary, a pro rata portion of the Tax
Partnership’s other items of income and gain, and if necessary, for subsequent
years) equal to such Party’s share of such net decrease (except to the extent
such Party’s share of such net decrease is caused by a change in debt structure
or by the Tax Partnership’s use of capital contributed by such Party to repay
Partner Nonrecourse Debt) as determined in accordance with applicable
Regulations.


 


(h)          CWEI shall use all reasonable efforts
to prevent any allocation or distribution from causing a negative balance in a
Party’s Adjusted Capital Account. 
Consistent therewith, and notwithstanding any of the foregoing
provisions of this Section 3.01 of this Exhibit D to
the contrary, if for any fiscal year of the Tax Partnership the allocation of
any loss or deduction (net of any income or gain) to any Party would cause or
increase a negative balance in such Party’s Adjusted Capital Account as of the
end of such fiscal year (the “Deficit Party”)
after taking into account the provisions of Section 3.01(g) of
this Exhibit D, only the amount of such loss or


 


D-4

















 


deduction that reduces the
balance to zero shall be allocated to such Deficit Party and the remaining loss
or deduction shall be allocated to the Parties whose Adjusted Capital Accounts
have a positive balance remaining at such time (each, a “Positive Party”).  After any such allocation, any Tax
Partnership income or gain (including Simulated Gain) that would otherwise be
allocated to the Deficit Party shall be allocated instead to the Positive Parties
up to an amount equal to the Tax Partnership loss or deduction allocated to
each Positive Party under the preceding sentence; provided, however,
that no allocation of income or gain realized shall be made under this sentence
if the effect of such allocation would be to cause the Adjusted Capital Account
of the Deficit Party to be less than zero. 
If, after taking into account the allocation in the first sentence of
this Section 3.01(h), the Adjusted Capital Account balance of the
Deficit Party remains less than zero at the end of a fiscal year, a pro rata
portion of each item of Tax Partnership income or gain (including Simulated
Gain) otherwise allocable to the Positive Parties for such fiscal year (or if
there is no such income or gain allocable to the Positive Parties for such
fiscal year, all such income or gain (including Simulated Gain) so allocable in
the succeeding fiscal year or years) shall be allocated to the Deficit Party in
an amount necessary to cause its Adjusted Capital Account balance to equal
zero; provided, that no allocation under this sentence shall have the
effect of causing the Positive Party’s Adjusted Capital Account to be less than
zero.  After any such allocation, any Tax
Partnership gain (including Simulated Gain) resulting from the sale or other
disposition of Designated Property that would otherwise be allocated to the
Deficit Party for any fiscal year under this Section 3.01 shall be
allocated instead to the Positive Parties until the amount of gain so allocated
equals the amount of gain (including Simulated Gain) previously allocated to
such Deficit Party under the preceding sentence of this Section 3.01(h);
provided, however, that no allocation of gain (including
Simulated Gain) shall be made under this sentence if the effect of such
allocation would be to cause the Adjusted Capital Account of a Deficit Party to
be less than zero.


 


ARTICLE IV


 


OTHER TAX MATTERS


 


Section 4.01           Tax Elections.


 


(a)           For tax purposes, the Tax Partnership shall elect to use
the calendar as its taxable year, and to report income and loss under the
accrual method of accounting.


 


(b)           In connection with any Transfer or other assignment of an
interest in the Tax Partnership permitted by the terms and provisions of this
Agreement, CWEI shall, at the written request of the transferor, transferee or
other successor, cause the Tax Partnership to make an election to adjust the
basis of the Tax Partnership’s property in the manner provided in sections 734(b) and
743(b) of the Code (or any like statute or regulation then in effect), and
such transferor, transferee or other successor shall pay all costs incurred by
the Tax Partnership in connection therewith, including, without limitation,
reasonable attorneys’ and accountants’ fees.


 


(c)           Unless approved by the Participants, the Tax Partnership
shall not file any election pursuant to sections 761 or 7701 of the Code,
section 301.7701-3 of the Regulations or otherwise, the effect of which would
cause the Tax Partnership not to be treated as a partnership for Federal income
tax purposes.


 


D-5

















 


(d)           Except as otherwise specifically provided herein, CWEI
shall have the sole and absolute discretion to make any other available
election under the Code on behalf of the Tax Partnership without the prior
approval by the Participants.


 


Section 4.02           Tax Matters Partner.  CWEI is hereby designated the “tax matters
partner” of the Tax Partnership pursuant to Section 6231(a)(7) of the
Code.


 


ARTICLE V


 


CAPITAL ACCOUNT MAINTENANCE


 


Section 5.01           Maintenance of Capital Accounts.  An individual Capital Account (a “Capital Account”) shall be maintained by
the Tax Partnership for each Party as provided below:


 


(a)           The Capital Account of each Party shall, except as
otherwise provided herein, be (A) credited by such Party’s Capital
Contributions when made (net of liabilities secured by contributed property
that the Tax Partnership is considered to assume or take subject to under Section 752
of the Code), (B) credited with the amount of any item of taxable income
or gain and the amount of any item of income or gain exempt from tax allocated
to such Party, (C) credited with the Party’s share of Simulated Gain as
provided in Section 5.01(b) of this Exhibit D, (D) debited
by the amount of any item of tax deduction or loss allocated to such Party, (E) debited
with the Party’s share of Simulated Loss and Simulated Depletion as provided in
Section 5.01(b) of this Exhibit D, (F) debited
by such Party’s allocable share of expenditures of the Tax Partnership not
deductible in computing the Tax Partnership’s taxable income and not properly
chargeable as capital expenditures, including any non-deductible book
amortizations of capitalized costs, and (G) debited by the amount of cash
or the fair market value of any property distributed to such Party (net of
liabilities secured by such distributed property that such Party is considered
to assume or take subject to under Section 752 of the Code).  Immediately prior to any distribution of
assets by the Tax Partnership that is not pursuant to a liquidation of the Tax
Partnership or all or any portion of a Party’s interest therein, the Parties’
Capital Accounts shall be adjusted by (X) assuming that the distributed
assets were sold by the Tax Partnership for cash at their respective fair
market values as of the date of distribution by the Tax Partnership and (Y) crediting
or debiting each Party’s Capital Account with its respective share of the
hypothetical gains or losses, including Simulated Gains and Simulated Losses,
resulting from such assumed sales in the same manner as each such Capital
Account would be debited or credited for gains or losses on actual sales of
such assets.


 


(b)           The allocation of basis prescribed by Section 613A(c)(7)(D) of
the Code and provided for in Section 3.01(b) of this Exhibit D
and each Party’s separately computed depletion deductions shall not reduce such
Party’s Capital Account, but such Party’s Capital Account shall be decreased by
an amount equal to the product of the depletion deductions that would otherwise
be allocable to the Tax Partnership in the absence of Section 613A(c)(7)(D) of
the Code (computed without regard to any limitations which theoretically could
apply to any Party) times such Party’s percentage share of the adjusted basis
of the property (determined under Section 3.01(b) of this Exhibit D)
with respect to which such depletion is claimed (“Simulated Depletion”). 
The Tax Partnership’s basis in any Depletable Property as adjusted from
time to time for the Simulated Depletion allocable to all Parties (and where
the context requires, each


 


D-6

















 


Party’s allocable share
thereof, which share shall be determined in the same manner as the allocation
of basis prescribed in Section 3.01(b) of this Exhibit D)
is herein called “Simulated Basis.”  No Party’s Capital Account shall be
decreased, however, by Simulated Depletion deductions attributable to any
Depletable Property to the extent such deductions exceed such Party’s allocable
share of the Tax Partnership’s remaining Simulated Basis in such property.  The Tax Partnership shall compute simulated
gain (“Simulated Gain”) or
simulated loss (“Simulated Loss”)
attributable to the sale or other disposition of a Depletable Property based on
the difference between the amount realized from such sale or other disposition
and the Simulated Basis of such property, as theretofore adjusted.  Any Simulated Gain shall be allocated to the
Parties and shall increase their respective Capital Accounts in the same manner
as the amount realized from such sale or other disposition in excess of
Simulated Basis shall have been allocated pursuant to Section 3.01(b) of
this Exhibit D.  Any Simulated
Loss shall be allocated to the Parties and shall reduce their respective
Capital Accounts in the same percentages as the costs of the property sold were
allocated up to an amount equal to each Party’s share of the Tax Partnership’s
Simulated Basis in such property at the time of such sale.


 


(c)           Any adjustments of basis of Designated Property provided
for under Sections 734 and 743 of the Internal Revenue Code and comparable
provisions of state law (resulting from an election under Section 754 of
the Code or comparable provisions of state law) and any election by an individual
Party under Section 59(e)(4) of the Code to amortize such Party’s
share of intangible drilling and development costs shall not affect the Capital
Accounts of the Parties (unless otherwise required by applicable Treasury
Regulations), and the Parties’ Capital Accounts shall be debited or credited
pursuant to the terms of this Section 5.01 as if no such election
had been made.


 


(d)           Capital Accounts shall be adjusted, in a manner consistent
with this Section 5.01, to reflect any adjustments in items of Tax
Partnership income, gain, loss or deduction that result from amended returns
filed by the Tax Partnership or pursuant to an agreement by the Tax Partnership
with the Internal Revenue Service or a final court decision.


 


(e)           In the case of property carried on the books of the Tax
Partnership at an amount which differs from its adjusted basis, the Parties’
Capital Accounts shall be debited or credited for items of depreciation, cost
recovery, Simulated Depletion, amortization and gain or loss (including
Simulated Gain or Simulated Loss) with respect to such property computed in the
same manner as such items would be computed if the adjusted tax basis of such
property were equal to such book value, in lieu of the capital account
adjustments provided above for such items, all in accordance with Regulation Section 1.704-1(b)(2)(iv)(g).


 


(f)            It is the intention of the Parties that the Capital
Accounts of each Party be kept in the manner required under Regulation Section 1.704-1(b)(2)(iv).  To the extent any additional adjustment to
the Capital Accounts is required by such regulations, CWEI is hereby authorized
to make such adjustment after notice to the Party.


 


[End of Exhibit D]


 


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