REGISTRATION RIGHTS AGREEMENT WESTSIDE ENERGY CORPORATION 2,456,140 Shares of Common Stock
Exhibit
10.30
WESTSIDE
ENERGY CORPORATION
2,456,140
Shares of
Common
Stock
This Registration Rights Agreement
(this "Agreement"), made and
entered into as of the date set forth below, by and between Westside Energy
Corporation, a Nevada corporation (the "Company"), and each
of the purchasers set forth on the signature page hereof (each a
"Purchaser" and
collectively, together with a permitted assignee of such Purchaser pursuant to
Section 4 hereof, the “Purchasers”), is
intended to set forth certain covenants and agreements between the Company and
the Purchasers with respect to the registration by the Company under the
Securities Act of 1933, as amended (the “Securities Act”) of
the re-sale by the Purchasers of shares (the "Shares") of Common
Stock, par value $0.01 per share (the "Common Stock"),
acquired pursuant to a Purchase Agreement among the Purchasers and the Company
dated November 9, 2007 (the “Purchase Agreement”).
Capitalized terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
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1.
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Registration
Rights.
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(a) Following
the Closing Date, the Company shall prepare and file as soon as reasonably
practicable with the Securities and Exchange Commission (the "SEC"), a registration
statement on Form SB-2 (or such other form as may be applicable) and such other
documents as may be necessary in the opinion of counsel for the Company, and use
its best efforts to have such registration statement declared effective as soon
as reasonably practicable but in any event within 270 days after the Closing
Date in order to comply with the provisions of the Securities Act, so as to
permit the registered resale of the Shares for a period of two years following
the date such registration statement is first declared effective by the SEC
(plus such number of additional days, if any, that the Company has voluntarily
suspended the effectiveness of such registration statement pursuant to section
(c)) by each and every Purchaser, except for those Purchasers who designate on
the signature page hereto that they do not wish to have their Shares included in
the registration statement. Notwithstanding the foregoing, the
Company shall cause such registration statement to be declared effective no
later than the fifth (5th) business day following the date on which the Company
is notified by the SEC that such registration statement will not be reviewed or
is no longer subject to further review and comments. The Shares that are
registered for resale under such registration statement are referred to herein
as the "Offering
Shares," and the Purchasers who are eligible to sell their Offering
Shares under such registration statement, together with their affiliates, are
hereafter referred to as "Offering
Holders." The Company will include in such registration
statement (i) the information required under the Securities Act to be so
included concerning the Offering Holders, as provided by the Offering Holders on
the signature pages to this Agreement, including any changes in such information
that may be provided by the Offering Holders in writing to the Company from time
to time, and (ii) a section entitled "Plan of Distribution," substantially
in the form of Exhibit A hereto, that describes the various procedures that
may be used by the Offering Holders in the sale of their Offering
Shares.
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(b) In
the event that such registration statement is not declared effective by the
earlier of (i) 270 days after the Closing Date or (ii) the fifth (5th) business
day following the date on which the Company is notified by the SEC that such
registration statement will not be reviewed or is no longer subject to further
review and comments, the Company will be required to pay a penalty to each
Offering Holder an amount in cash equal to one percent (1%) of such Offering
Holder's purchase price for the Offering Shares, and an additional one percent
(1%) for each additional 30-day period during which such registration statement
is not declared effective.
(c) Notwithstanding
the foregoing provisions of this Section 1, the Company may delay or
voluntarily suspend the effectiveness of any such registration statement for a
limited time, which in no event shall be longer than 60 days in any three-month
period and no longer than 120 days in any twelve-month period, if the Company
has been advised in writing by counsel or underwriters to the Company that the
offering of any Offering Shares pursuant to the registration statement would
materially adversely affect, or would be improper in view of (or improper
without disclosure in a prospectus), a proposed financing, reorganization,
recapitalization, merger, consolidation, or similar transaction involving the
Company. In the event that the Company voluntarily suspends the
effectiveness of any registration statement for the reasons just given for a
longer period of time than the 60-day and 120-day periods just described or any
registration statement becomes unavailable pursuant to Section 1(d), the Company
will be required to pay a penalty to each Offering Holder equal to one percent
(1%) of such Offering Holder's purchase price for the Offering Shares for each
additional 30-day period during which the effectiveness of such registration
statement is so suspended. The Company shall notify all Offering
Holders to such effect, and, upon receipt of such notice, each such Offering
Holder shall immediately discontinue any sales of Offering Shares pursuant to
such registration statement until such Offering Holder has received copies of a
supplemented or amended prospectus or until such Offering Holder is advised in
writing by the Company that the then current prospectus may be used and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such prospectus.
(d) If
any event occurs that would cause any such registration statement to contain a
material misstatement or omission or not to be effective and usable during the
period that such registration statement is required to be effective and usable,
the Company shall promptly notify the Offering Holders of such event and, if
requested, the Offering Holders shall immediately cease making offers of
Offering Shares. The Company shall promptly file an amendment to the
registration statement to correct such misstatement or omission and use its best
efforts to cause such amendment to be declared effective as soon as practicable
thereafter. The Company shall promptly provide the Offering Holders
with revised prospectuses and, following receipt of the revised prospectuses,
the Offering Holders shall be free to resume making offers of the Offering
Shares.
(e) Notwithstanding
any provision contained herein to the contrary, the Company's obligation to
include, or continue to include, Offering Shares in any such registration
statement under this Section 1 shall terminate to the extent such Offering
Shares are eligible for resale under Rule 144(k) (or any successor
regulation) promulgated under the Securities Act.
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(f)
If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect or maintain the
registration of the Offering Shares under the Securities Act for the account of
an Offering Holder, the Company will, as promptly as possible:
(i) prepare
and file with the SEC a registration statement, on Form SB-2 (or other
applicable form), complying with applicable requirements under the Securities
Act, with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period described
in Section 1(a);
(ii) prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the requirements
of the Securities Act and the rules and regulations promulgated by the SEC
thereunder relating to the sale or other disposition of the securities covered
by such registration statement; and
(iii) furnish
to each Offering Holder such numbers of copies of a prospectus, including a
preliminary prospectus, complying with the requirements of the Securities Act,
and such other documents as such Offering Holder may reasonably request in order
to facilitate the public sale or other disposition of the Offering Shares owned
by such Offering Holder, but such Offering Holder shall not be entitled to use
any selling materials other than a prospectus and such other materials as may be
approved by the Company, which approval will not be unreasonably
withheld.
(i)
Except as provided below in this Section 1, the
expenses incurred by the Company in connection with action taken by the Company
to perform and comply with the provisions of this Section 1, including,
without limitation, all registration and filing fees, listing fees, registration
and transfer agent fees, printing and delivery expenses, accounting fees, fees
and disbursements of counsel to the Company, consultant and expert fees,
premiums for liability insurance, if the Company chooses to obtain such
insurance, obtained in connection with a registration statement filed to effect
such compliance and all expenses, including counsel fees, of complying with any
state securities laws (“Registration
Expenses”), shall be paid by the Company. All fees and
disbursements of any counsel, experts, or consultants employed by any Offering
Holder shall be borne by such Offering Holder. The Company shall not
be obligated in any way in connection with any registration pursuant to this
Section 1 for any selling commissions or discounts payable by any Offering
Holder to any underwriter or broker of securities to be sold by such Offering
Holder. Each Purchaser agrees that any such selling commissions or
discounts shall be borne by such Offering Holder.
(j)
In the event of any registration of Shares pursuant to
this Section 1, the Company will indemnify and hold harmless each Offering
Holder, its officers, directors, attorneys, partners, agents, employees,
investment advisers and consultants and each underwriter of such securities, and
any person who controls such Offering Holder or underwriter within the meaning
of Section 15 of the Securities Act (collectively, the "Indemnified
Parties"), against all claims, actions, losses, damages, liabilities and
expenses, joint or several, to which any of such Indemnified Parties may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any actual or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or any document incorporated by reference
therein, or arise out of or are based upon the actual or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each of such Indemnified Parties for
any legal and any other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises directly out of or is based upon an untrue statement or omission
of a material fact made in said registration statement, said preliminary
prospectus or said prospectus, or said amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Offering Holder or such underwriter specifically for use therein; and provided
further, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability or action arises directly
out of or is based primarily upon an untrue statement or omission of a material
fact made in any preliminary prospectus or final prospectus if (i) such Offering
Holder failed to send or deliver the copy of the final prospectus or prospectus
supplement which such Offering Holder shall have been previously provided by the
Company, with or prior to the delivery of written confirmation of the sale of
the Offering Shares, and (ii) the final prospectus or prospectus supplement
would have corrected such untrue statement or omission.
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(k) At
any time when a prospectus relating to the Offering is required to be delivered
under the Securities Act, the Company will notify the Offering Holder of the
happening of any event, upon the notification or awareness of such event by an
executive officer of the Company, as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing.
(l) In
the event of any registration of any securities under the Securities Act
pursuant to this Section 1, each Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Company, its officers, directors,
attorneys, partners, agents, employees and consultants and any person who
controls the Company within the meaning of Section 15 of the Securities Act
(collectively, the "Indemnified
Persons"), against any losses, claims, damages, liabilities, or actions,
joint or several, to which any of such Indemnified Persons may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities, or actions arise out of or are based upon any actual or alleged
untrue statement of any material fact contained in any registration statement
under which such Offered Securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the actual or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent and only to the extent that any such loss, claim, damage, liability, or
action arises out of or is based upon an untrue statement or omission of a
material fact made in said registration statement, said preliminary prospectus
or said prospectus or said amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by a Purchaser or
any affiliate (as defined in the Securities Act) of a Purchaser specifically for
use therein. Notwithstanding anything to the contrary in this
Agreement, no Purchaser shall be liable for any indemnification obligation under
this Agreement in excess of the aggregate amount of net proceeds received by
such Purchaser from the sale of the Offered Shares pursuant to the registration
statement.
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(m) Any
party entitled to indemnification hereunder will (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (which consent may not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(n) If
the indemnification provided for in this Section 1 is unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if contribution
were determined by pro rata allocation (even if the Offering Holders or any
underwriters, selling agents or other securities professionals or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of
the Offering Holders and any underwriters, selling agents or other securities
professionals in this Section to contribute shall be several in proportion to
the percentage of principal amount of Shares registered or underwritten, as the
case may be, by them and not joint.
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(o) With
a view to making available to the Offering Holder the benefits of Rule 144
promulgated under the Securities Act, the Company agrees that it will use its
best efforts to maintain registration of its Common Stock under Section 12
or 15 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
to file with the SEC in a timely manner all reports and other documents required
to be filed by an issuer of securities registered under the Exchange Act so as
to maintain the availability of Rule 144. Upon the request of
any record owner, the Company will deliver to such owner a written statement as
to whether it has complied with the reporting requirements of
Rule 144.
(p) If,
prior to the filing of the registration statement required by Section 1(a), the
Company at any time proposes to file a registration statement under the
Securities Act covering the sale of securities solely for cash other than a
registration statement on Form S-8 or a registration on Form S-4 or any
successor or similar forms and other than pursuant to Section 1(a), whether or
not for sale or its own account, it will each such time give prompt written
notice to all Purchasers of its intention to do so and of such Purchasers’
rights under Section 1(p). Upon the written request of any such
Purchaser made within 10 days after the receipt of any such notice (which
request shall specify the Shares intended to be disposed of by such Purchaser
and the intended method of disposition thereof), the Company will use its best
efforts to effect the registration under the Securities Act of all Shares which
the Company has been so requested to register by the Purchasers, to the extent
requisite to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Shares so to be registered, by inclusion of such
Shares in the registration statement which covers the securities which the
Company proposes to register; provided, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to each Offering Holder and,
thereupon, (i) in the case of a determination not to register, so long as it
does not register, shall be relieved of its obligation to register any Shares in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith) and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Shares, for the same period as the delay in registering such other
securities. No registration effected under Section 1(p) shall relieve
the Company of its obligation to effect any registration upon request under
Section 1(a). The Company will pay all Registration Expenses incurred
by Purchasers in connection with each registration of Shares requested pursuant
to Section 1(p). If (i) a registration pursuant to Section 1(p) involves an
underwritten offering of the securities being registered, whether or not for
sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters, and (ii) the managing underwriter
of such underwritten offering shall inform the Company of its belief that the
distribution of all or a specified number of such Shares concurrently with the
securities being distributed by such underwriters would interfere with the
successful marketing of the securities being distributed by such underwriters,
then the Company may, upon written notice to all Offering Holders, reduce pro
rata (if and to the extent stated by such managing underwriter to be necessary
to eliminate such effect) the number of such Shares and securities proposed to
be sold by any person other than the Company the registration of which shall
have been requested by each Offering Holder and each person other than the
Company so that the resultant aggregate number of such Shares so included in
such registration shall be equal to the number of shares of Shares recommended
by the managing underwriter.
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(q) The
Company represents and warrants to, and covenants with the Purchasers that no
Person other than Offering Holders with respect to the Offered Shares shall have
the right to register any shares of Common Stock or other securities of the
Company in the registration statement required to be prepared and filed by the
Company with the SEC pursuant to Section 1(a).
2.
Notices. All
notices and other communications provided for herein shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or sent
by reputable overnight courier, charges prepaid:
(a)
if to the Company, to the following
address:
Westside
Energy Corporation
0000
Xxxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn: Xxxxxxx
X. Manner
Telephone: (000)
000-0000;
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(b)
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if
to a Purchaser, to the address set forth on the signature page
hereto;
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(c)
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or
at such other address as any party shall have specified by notice in
writing to the other.
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3.
Notification of
Changes. Each Purchaser agrees and covenants to notify the
Company immediately upon the occurrence of any event prior to the consummation
of the Offering that would cause any representation, warranty, covenant or other
statement contained in this Agreement to be false or incorrect or of any change
in any statement made herein occurring prior to the consummation of the
Offering.
4.
Assignability;
Modification. This Agreement is not assignable by any
Purchaser; provided that a Purchaser may assign its rights and obligations under
this Agreement to any Person that purchases 20% or more of the Shares initially
purchased by such Purchaser so long as such person acquires such Shares in a
transaction exempt from registration under the Securities Act. This Agreement
may not be modified, waived or terminated except by an instrument in writing
signed by the party against whom enforcement of such modification, waiver or
termination is sought.
5.
Binding
Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns, and the agreements, representations, warranties and acknowledgments
contained herein shall be deemed to be made by and be binding upon such heirs,
executors, administrators, successors, legal representatives and permitted
assigns.
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6.
Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAW THEREOF THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN TEXAS.
7.
Severability. If
any provision of this Agreement or the application thereof to a Purchaser or any
circumstance shall be held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such provision to other subscriptions
or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
8.
Headings. The
headings in this Agreement are inserted for convenience and identification only
and are not intended to describe, interpret, define, or limit the scope, extent
or intent of this Agreement or any provision hereof.
9.
Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
together shall be deemed to be one and the same agreement.
10. Counsel. The
Purchasers hereby acknowledges that the Company and its counsel represent the
interests of the Company and not the Purchasers in any agreement (including this
Agreement) to which the Company is a party.
[SIGNATURES
TO FOLLOW]
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IN WITNESS WHEREOF, the parties have
executed this Registration Rights Agreement as of November 12,
2007.
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Westside
Energy Corporation
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By:
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Name:
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Title:
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Purchasers:
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Address:
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No.
of Shares:
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Spindrift
Partners, L.P.
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c/o
Wellington Management Company, LLP
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576,857
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By:
Wellington Management
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00
Xxxxx Xxxxxx
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| Xxxxxxx, XXX, as investment adviser |
Xxxxxx,
XX 00000
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Attn: Legal
Services/Xxxxxx X. Xxxxxxx
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By:
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Name:
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Title:
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Spindrift
Investors (Bermuda), L.P.
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Wellington
Management Company, LLP
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686,300
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By:
Wellington Management
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00
Xxxxx Xxxxxx
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| Xxxxxxx, XXX, as investment adviser |
Xxxxxx,
XX 00000
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Attn: Legal
Services/Xxxxxx X. Xxxxxxx
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By:
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Name:
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Title:
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Knight
Energy Group II, LLC
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000
Xxxx Xxxxxx, Xxxxx 0000
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1,192,983 | ||
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Xxxxxxxx
Xxxx, XX 00000
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By:
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Name:
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Title:
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Exhibit
A
PLAN
OF DISTRIBUTION
As of the
date of this prospectus, we have not been advised by the selling stockholders as
to any plan of distribution. Shares owned by the selling
stockholders, or by their partners, pledgees, donees (including charitable
organizations), transferees or other successors in interest, may from time to
time be offered for sale either directly by such individual, or through
underwriters, dealers or agents or on any exchange on which the shares may from
time to time be traded, in the over-the-counter market, or in independently
negotiated transactions or otherwise. The methods by which the shares
may be sold include:
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·
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a
block trade (which may involve crosses) in which the broker or dealer so
engaged will attempt to sell the securities as agent but may position and
resell a portion of the block as principal to facilitate the
transaction;
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·
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purchases
by a broker or dealer as principal and resale by such broker or dealer for
its own account pursuant to this
prospectus;
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·
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exchange
distributions and/or secondary
distributions;
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·
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sales
in the over-the-counter market;
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·
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underwritten
transactions;
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·
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ordinary
brokerage transactions and transactions in which the broker solicits
purchasers; and
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·
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privately
negotiated transactions.
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Such
transactions may be effected by the selling stockholders at market prices
prevailing at the time of sale or at negotiated prices. The selling
stockholders may effect such transactions by selling the common stock to
underwriters or to or through broker-dealers, and such underwriters or
broker-dealers may receive compensations in the form of discounts or commissions
from the selling stockholders and may receive commissions from the purchasers of
the common stock for whom they may act as agent. The selling
stockholders may agree to indemnify any underwriter, broker-dealer or agent that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities
Act. We have agreed to register the shares for sale under the
Securities Act and to indemnify the selling stockholders, certain
representatives of the selling stockholders and each person who participates as
an underwriter in the offering of the shares against certain civil liabilities,
including certain liabilities under the Securities Act.
In
connection with sales of the common stock under this prospectus, the selling
stockholders may enter into hedging transactions with broker-dealers, who may in
turn engage in short sales of the common stock in the course of hedging the
positions they assume. The selling stockholders also may sell shares
of common stock short and deliver them to close out the short positions, or loan
or pledge the shares of common stock to broker-dealers that in turn may sell
them.
The
selling stockholders and any underwriters, dealers or agents that participate in
the distribution of the shares may be deemed to be underwriters, and any profit
on sale of the shares by them and any discounts, commissions or concessions
received by any underwriter, dealer or agent may be deemed to be underwriting
discounts and commissions under the Securities Act.
There can
be no assurances that the selling stockholders will sell any or all of the
shares offered under this prospectus.
2
