Registration Rights Agreement By and Among Northern Oil & Gas, Inc. and Deephaven MCF Acquisition LLC April 14, 2008
Exhibit
10.2
By
and Among
Northern
Oil & Gas, Inc.
and
Deephaven
MCF Acquisition LLC
April
14, 2008
TABLE OF
CONTENTS
Page
ARTICLE
1 Definitions [INSERT
PAGE NUMBER]
ARTICLE
2 Registration Rights [INSERT
PAGE NUMBER]
2.1 Required
Registration [INSERT
PAGE NUMBER]
2.2 Current
Public Information [INSERT
PAGE NUMBER]
2.3 Registration
Procedures. 3
2.4 Fees
and Expenses 5
2.5 Indemnification [INSERT
PAGE NUMBER]
2.6 Participation
in Registrations [INSERT
PAGE NUMBER]
ARTICLE
3 Transfers of Certain Rights [INSERT
PAGE NUMBER]
3.1 Transfer [INSERT
PAGE NUMBER]
3.2 Transferees [INSERT
PAGE NUMBER]
3.3 Subsequent
Transferees [INSERT
PAGE NUMBER]
ARTICLE
4 Miscellaneous [INSERT
PAGE NUMBER]
4.1 Recapitalizations,
Exchanges, etc [INSERT
PAGE NUMBER]
4.2 No
Inconsistent Agreements [INSERT
PAGE NUMBER]
4.3 Amendments
and Waivers [INSERT
PAGE NUMBER]
4.4 Severability [INSERT
PAGE NUMBER]
4.5 Counterparts [INSERT
PAGE NUMBER]
4.6 Notices [INSERT
PAGE NUMBER]
4.7 Governing
Law [INSERT
PAGE NUMBER]
4.8 Forum;
Service of Process [INSERT
PAGE NUMBER]
4.9 Captions [INSERT
PAGE NUMBER]
4.10 No
Prejudice [INSERT
PAGE NUMBER]
4.11 Words
in Singular and Plural Form [INSERT
PAGE NUMBER]
4.12 Remedy
for Breach [INSERT
PAGE NUMBER]
4.13 Successors
and Assigns, Third Party Beneficiaries [INSERT
PAGE NUMBER]
4.14 Entire
Agreement [INSERT
PAGE NUMBER]
4.15 Attorneys’
Fees [INSERT
PAGE NUMBER]
4.16 Termination
of Rights [INSERT
PAGE NUMBER]
This
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 14, 2008, is entered into by and among NORTHERN OIL & GAS, INC., a
Nevada corporation (the "Company"), and DEEPHAVEN MCF
ACQUISITION LLC, a Delaware limited liability company (the "Purchaser").
Recitals:
A. The
Company desires to issue certain shares of its Common Stock to the Purchaser
(the "Shares") pursuant
to the terms of that certain agreement, dated as of April 14, 2008, by and
between the parties, attached hereto as Exhibit A (the "Purchase
Agreement");
B. It
is a condition precedent to the consummation of the transactions contemplated by
the Purchase Agreement that the Company provide for the rights set forth in this
Agreement; and
C. Certain
terms used but not defined in this Agreement shall have the meanings ascribed to
such terms in the Purchase Agreement.
Agreement
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, the parties hereto hereby agree as
follows:
ARTICLE
1
Definitions
"Affiliate" means any Person
that directly or indirectly controls, or is under common control with, or is
controlled by such Person. As used in this definition, "control"
(including with its correlative meanings, "controlled by" and "under common
control with") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"Common Stock" means the
common stock, par value $0.001 per share, of the Company.
"Company" has the meaning set
forth in the preamble.
"Exchange Act" means the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC promulgated thereunder.
"Indemnified Party" has the
meaning set forth in Section
2.5.
"Losses" has the meaning set
forth in Section
2.5.
"Person" means any individual,
company, corporation, limited liability company, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental body or other entity.
"Purchase Agreement" has the
meaning set forth in the recitals.
"Purchaser" has the meaning
set forth in the preamble.
"Registration Period" means
the two years, plus any additional periods required by the second paragraph of
Section 2.1,
during which the Registration Statement contemplated by Section 2.1 is
required to remain effective.
"Registrable Securities"
means, subject to the immediately following sentences, (i) shares of Common
Stock acquired by the Purchaser from the Company pursuant to the Purchase
Agreement, and (ii) any shares of Common Stock issued or issuable, directly or
indirectly, with respect to the securities referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. In
addition, any particular shares of Common Stock constituting Registrable
Securities will cease to be Registrable Securities when they (x) have been
effectively registered under the Securities Act and disposed of in accordance
with a Registration Statement covering them, (y) have been sold to the public
pursuant to Rule 144 (or by similar provision under the Securities Act), or (z)
are eligible for resale under Rule 144 (or by similar provision under the
Securities Act) without any limitation on the amount of securities that may be
sold under paragraph (e) thereof.
"Registration Statement" means
a registration statement on Form S-3 (or, if the Company is not eligible to use
Form S-3, such other appropriate registration form of the SEC pursuant to which
the Company is eligible to register the resale of Registrable Securities) filed
by the Company under the Securities Act that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such registration statement, that shall permit the Purchaser to
offer and sell, on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, the Registrable Securities.
"Representatives" has the
meaning set forth in Section
2.5.
"Required Filing Date" has the
meaning set forth in Section
2.1.
"Required Registration
Statement" has the meaning set
forth in Section
2.1.
"SEC" means the United States
Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
"Securities Act" means the
Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Shares" has the meaning set
forth in the recitals.
ARTICLE
2
Registration
Rights
2.1 Required
Registration. The Company shall use its best efforts to
prepare and as promptly as possible after the date of issuance of any Shares
pursuant to the terms of the Purchase Agreement, but in any event not later than
ninety (90) days from the issuance of such Shares (the "Required Filing Date"), cause
a Registration Statement to be declared effective under the Securities Act (the
"Required Registration
Statement"). The Company agrees to include in the Required
Registration Statement all information that the Purchaser shall reasonably
request. If the Company fails to file the Required Registration
Statement or if the Registration Statement is not effective within the periods
set forth above, the Company shall pay the Purchaser an amount per month equal
to one and one-half percent (1.5%) of the premium for which such Shares were
issued at the beginning of each thirty (30) day period following the
Registration Period in immediately available federal funds by wire transfer to
an account Purchaser designates to the Company. Notwithstanding
anything in this Agreement to the contrary, to the extent that the Company
issues Shares on more than one date of issuance to the Purchaser pursuant to the
terms of the Purchase Agreement, the terms of this Agreement shall apply to each
such issuance of Shares and the periods set forth above shall commence with
respect to each such issuance of Shares from the date on which each such
issuance occurs.
2
The
Company shall use its best efforts to keep the Required Registration Statement
continuously effective for a period of two (2) years after the Registration
Statement first becomes effective, plus the number of days during which such
Registration Statement was not effective or usable pursuant to 2.3(e) or 2.3(i), or such
shorter period as will terminate when all of the Registrable Securities covered
by the Required Registration Statement have been disposed of in accordance with
the Required Registration Statement or have otherwise ceased to be Registrable
Securities. In the event the Company shall give any notice pursuant
to Sections
2.3(e) or 2.3(i), the
additional time period mentioned in this Section 2.1 during
which the Required Registration Statement is to remain effective shall be
extended by the number of days during the period from and including the date of
the giving of such notice pursuant to Sections 2.3(e) or
2.3(i) to and
including the date the Purchaser covered by the Registration Statement shall
have received the copies of the supplemented or amended prospectus contemplated
by Sections
2.3(e).
2.2 Current Public
Information. The Company covenants that it will use its best
efforts to file all reports required to be filed by it under the Exchange Act
and the rules and regulations adopted by the SEC thereunder, and will use its
best efforts to take such further action as the Purchaser may reasonably
request, all to the extent required to enable the Purchaser to sell Registrable
Securities pursuant to Rule 144 or Rule 144A adopted by the SEC under the
Securities Act or any similar rule or regulation hereafter adopted by the
SEC. The Company shall, upon the request of a the Purchaser, deliver
to the Purchaser a written statement as to whether it has complied with such
requirements during the twelve (12) month period immediately preceding the date
of such request.
2.3 Registration
Procedures. The Company will use its best efforts to effect
the registration of Registrable Securities pursuant to this Agreement in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
(a) before
filing the Registration Statement, the Company will furnish to the counsel
selected by the Purchaser a copy of such Registration Statement, and will
provide such counsel with all correspondence with the SEC regarding the
Registration Statement;
(b) prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to
keep such Registration Statement effective for the period provided for in Section
2.1;
(c) furnish
to the Purchaser such number of copies of such Registration Statement, each
amendment and supplement thereto, the prospectus included in the Registration
Statement (including each preliminary prospectus) and such other documents as
the Purchaser may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Purchaser;
(d) use
its best efforts to register or qualify such Registrable Securities under such
other state securities or blue sky laws as the Purchaser reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to enable the Purchaser to consummate the disposition in such
jurisdictions of the Registrable Securities owned by the Purchaser and to keep
each such registration or qualification (or exemption therefrom) effective
during the period which the Registration Statement is required to be kept
effective (provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction);
(e) notify
the Purchaser at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in the Registration Statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, and, at the request of the Purchaser, the Company will as soon as possible
prepare and furnish to the Purchaser a reasonable number of copies of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made;
(f) cause
all such Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed and, if not so
listed, to be approved for trading on any automated quotation system of a
national securities association on which similar securities of the Company are
quoted;
3
(g) provide
a transfer agent and registrar for all such Registrable Securities not later
than the effective date of such Registration Statement;
(h) enter
into such customary agreements (including, if applicable, underwriting
agreements) and take all other customary and appropriate actions as the
Purchaser or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities;
(i) notify
the Purchaser of any stop order issued or threatened by the SEC or any pending
proceeding against the Company under Section 8A of the Securities Act in
connection with an offering of Registrable Securities;
(j) otherwise
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months beginning with the
first day of the Company’s first full calendar quarter after the effective date
of the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) in
the event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any securities included in
such Registration Statement for sale in any jurisdiction, the Company will use
its best efforts to promptly obtain the withdrawal of such order;
(l) if
requested by the Purchaser, obtain one or more comfort letters, dated the
effective date of the Registration Statement (and, if such registration includes
an underwritten offering, dated the date of the closing under the underwriting
agreement), signed by the Company’s independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the Purchaser reasonably requests;
(m) provide
a legal opinion of the Company’s outside counsel, dated the effective date of
such Registration Statement (and, if such registration includes an underwritten
offering, dated the date of the closing under the underwriting agreement), with
respect to the Registration Statement, each amendment and supplement thereto,
the prospectus included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering such matters of
the type customarily covered by legal opinions of such nature;
(n) subject
to execution and delivery of mutually satisfactory confidentiality agreements,
make available at reasonable times for inspection by the Purchaser, any managing
underwriter participating in any disposition of such Registrable Securities
pursuant to the Registration Statement, and any attorney, accountant or other
agent retained by the Purchaser or any managing underwriter, if any, during
normal business hours of the Company at the Company’s corporate office and
without unreasonable disruption of the Company’s business or unreasonable
expense to Company and solely for the purpose of due diligence with respect to
the Registration Statement, legally disclosable, financial and other records and
pertinent corporate documents of the Company reasonably requested by such
persons, and cause the Company’s employees and independent accountants to supply
all similar information reasonably requested by any the Purchaser, managing
underwriter, attorney, accountant or agent in connection with the Registration
Statement, as shall be reasonably necessary to enable them to exercise their due
diligence responsibility;
(o) cooperate
with the Purchaser and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the Financial Industry
Regulatory Authority;
(p) file
all Registration Statements and any amendments and supplements thereto
electronically through the SEC's ▇▇▇▇▇ filing system; and
4
(q) take
all other steps reasonably necessary to effect the registration of the.
Registrable Securities contemplated hereby.
2.4 Fees and
Expenses. All expenses incident to the Company’s performance
of or compliance with this Agreement including, without limitation, all
registration and filing fees payable by the Company, fees and expenses of
compliance by the Company with securities or blue sky laws, printing expenses of
the Company, messenger and delivery expenses of the Company, and fees and
disbursements of counsel for the Company and all independent certified public
accountants of the Company, and other Persons retained by the Company will be
borne by the Company, and the Company will pay its internal expenses (including,
without limitation, all salaries and expenses of the Company’s employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance of the Company and the
expenses and fees for listing or approval for trading of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on any automated quotation system of a national
securities association on which similar securities of the Company are
quoted.
2.5 Indemnification.
(a) The
Company agrees to indemnify and hold harmless, to the fullest extent permitted
by law, the Purchaser and its general or limited partners, officers, directors,
members, managers, employees, advisors, representatives, agents and Affiliates
(collectively, the "Representatives") from and
against any loss, claim, damage, liability, attorney’s fees, cost or expense and
costs and expenses of investigating and defending any such claim (collectively,
the "Losses"), joint or
several, and any action in respect thereof to which the Purchaser or its
Representatives may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereto) arise out of or are based upon (i) any breach by
the Company of any of its representations, warranties or covenants contained in
this Agreement, (ii) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, prospectus or preliminary or summary
prospectus or any amendment or supplement thereto, or (iii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Company
shall reimburse the Purchaser and its Representatives for any legal or any other
expenses incurred by them in connection with investigating or defending or
preparing to defend against any such Loss, action or proceeding; provided,
however, that the Company shall not be liable to the Purchaser or other
indemnitee in any such case to the extent that any such Loss (or action or
proceeding, whether commenced or threatened, in respect thereof) arises out of
or is based upon (x) an untrue statement or alleged untrue statement or omission
or alleged omission made in such Registration Statement, any such prospectus or
preliminary or summary prospectus or any amendment or supplement thereto in
reliance upon, and in conformity with, written information prepared and
furnished to the Company by the Purchaser or its Representatives expressly for
use therein and, with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus relating to the
Registration Statement, to the extent that a prospectus relating to the
Registrable Securities was required to be delivered by the Purchaser under the
Securities Act in connection with such purchase, there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
Registrable Securities to such person, a copy of the final prospectus that
corrects such untrue statement or alleged untrue statement or omission or
alleged omission if the Company had previously furnished copies thereof to the
Purchaser or (y) use of a Registration Statement or the related prospectus
during a period when a stop order has been issued in respect of such
Registration Statement or any proceedings for that purpose have been initiated
or use of a prospectus when use of such prospectus has been suspended pursuant
to 2.3(e) or
2.3(i);
provided that in each case the Purchaser received prior written notice of such
stop order, initiation of proceedings or suspension from the
Company. In no event, however, shall the Company be liable for
indirect, incidental or consequential or special damages of any
kind. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Purchaser.
5
(b) In
connection with the filing of the Registration Statement by the Company pursuant
to this Agreement, the Purchaser will furnish to the Company in writing such
information as the Company reasonably requests for use in connection with such
Registration Statement and the related prospectus and, to the fullest extent
permitted by law, the Purchaser will indemnify and hold harmless the Company and
its Representatives from and against any Losses, severally but not jointly, and
any action in respect thereof to which the Company and its Representatives may
become subject under the Securities Act or otherwise, insofar as such Losses (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (i) the purchase or sale of Registrable
Securities during a suspension as set forth in 2.3(e) or 2.3(i) in each case
after receipt of written notice of such suspension, (ii) any untrue or alleged
untrue statement of a material fact contained in the Registration Statement,
prospectus or preliminary or summary prospectus or any amendment or supplement
thereto, or (iii) any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading,
but, with respect to clauses (ii) and (iii) above, only to the extent that such
untrue statement or omission is made in such Registration Statement, any such
prospectus or preliminary or summary prospectus or any amendment or supplement
thereto in reliance upon, and in conformity with, written information prepared
and furnished to the Company by the Purchaser expressly for use therein or by
failure of the Purchaser to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto, and the Purchaser will
reimburse the Company and each Representative for any legal or any other
expenses incurred by them in connection with investigating or defending or
preparing to defend against any such Loss, action or proceeding; provided,
however, that the Purchaser shall not be liable in any such case to the extent
that prior to the filing of any such Registration Statement or prospectus or
amendment or supplement thereto, the Purchaser has furnished in writing to the
Company information expressly for use in such Registration Statement or
prospectus or any amendment or supplement thereto that corrected or made not
misleading information previously furnished to the Company. The
obligation of the Purchaser to indemnify the Company and its Representatives
shall be limited to the net proceeds received by the Purchaser from the sale of
Registrable Securities under such Registration Statement. In no
event, however, shall the Purchaser be liable for indirect, incidental or
consequential or special damages of any kind.
(c) Promptly
after receipt by any Person in respect of which indemnity may be sought pursuant
to Section
2.5(a) or 2.5(b) (an "Indemnified Party") of notice
of any claim or the commencement of any action, the Indemnified Party shall, if
a claim in respect thereof is to be made against the Person against whom such
indemnity may be sought (an "Indemnifying Party"),
promptly notify the Indemnifying Party in writing of the claim or the
commencement of such action; provided that the failure to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
that it may have to an Indemnified Party under Section 2.5(a) or
2.5(b) except
to the extent of any actual prejudice resulting therefrom. If any
such claim or action shall be brought against an Indemnified Party, and it shall
notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party and
its Representatives who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel or
(ii) in the written opinion of counsel to such Indemnified Party, representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however, that
the Indemnifying Party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any claim or pending
or threatened proceeding in respect of which the Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability arising out of such claim or
proceeding other than the payment of monetary damages by the Indemnifying Party
on behalf of the Indemnified Party. Whether or not the defense of any
claim or action is assumed by the Indemnifying Party, such Indemnifying Party
will not be subject to any liability for any settlement made without its
consent, which consent will not be unreasonably withheld.
6
(d) If
the indemnification provided for in this Section 2.5 is
unavailable to the Indemnified Parties in respect of any Losses referred to
herein, then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Purchaser on
the other from the offering of the Registrable Securities, or if such allocation
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits but also the relative fault of the
Company on the one hand and the Purchaser on the other in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of the Purchaser on the other shall be determined by reference to,
among other things, whether any action taken, including any untrue or alleged
untrue statement of a material fact, or the omission or alleged omission to
state a material fact relates to information supplied by such party, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The
Company and the Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 2.5(d) were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the Losses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 2.5, the
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities of the Purchaser
were offered to the public exceeds the amount of any Losses which the Purchaser
has otherwise paid by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Purchaser’s obligations to
contribute pursuant to this Section 2.5 is
several in the proportion that the proceeds of the offering received by the
Purchaser bears to the total proceeds of the offering received by the
Purchaser. The indemnification provided by this Section 2.5 shall be
a continuing right to indemnification with respect to sales of Registrable
Securities and shall survive the registration and sale of any Registrable
Securities by the Purchaser and the expiration or termination of this
Agreement. The indemnity and contribution agreements contained herein
are in addition to any liability that any Indemnifying Party might have to any
Indemnified Party.
2.6 Participation in
Registrations.
(a) No
Person may participate in any registration hereunder that is underwritten unless
such Person (i) agrees to sell such Person’s securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement.
(b) Each
Person that is participating in any registration under this Agreement agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 2.3(e) or
2.3(i) above,
such Person will forthwith discontinue the disposition of its Registrable
Securities pursuant to the Registration Statement and all use of the
Registration Statement or any prospectus or related document until such Person’s
receipt of the copies of a supplemented or amended prospectus as contemplated by
such Section
2.3(e) and, if so directed by the Company, will deliver to the Company
(at the Company’s expense) all copies, other than permanent file copies, then in
the Purchaser’s possession of such documents at the time of receipt of such
notice. Furthermore, the Purchaser agrees that if the Purchaser uses
a prospectus in connection with the offering and sale of any of the Registrable
Securities, the Purchaser will use only the latest version of such prospectus
provided by Company.
ARTICLE
3
Transfers
of Certain Rights
3.1 Transfer. The
rights granted to the Purchaser under this Agreement are non-transferable except
in connection with a transfer of Registrable Securities in accordance with the
terms and conditions of the Purchase Agreement, provided that any such transfer
shall be subject to the provisions of Sections 3.2 and
3.3; provided
further that nothing contained herein shall be deemed to permit an assignment,
transfer or disposition of the Registrable Securities in violation of applicable
law.
7
3.2 Transferees. Any
permitted transferee to whom rights under this Agreement are transferred shall,
as a condition to such transfer, deliver to the Company a written instrument by
which such transferee agrees to be bound by the obligations imposed upon the
Purchaser under this Agreement to the same extent as if such transferee were a
Purchaser hereunder.
3.3 Subsequent
Transferees. A transferee to whom rights are transferred
pursuant to this Section 3 may not
again transfer such rights to any other person or entity, other than as provided
in Sections 3.1
or 3.2
above.
ARTICLE
4
Miscellaneous
4.1 Recapitalizations,
Exchanges, etc. The provisions of this Agreement shall apply
to the full extent set forth herein with respect to (i) the Registrable
Securities, (ii) any and all shares of Common Stock into which the Registrable
Securities are converted, exchanged or substituted in any recapitalization or
other capital reorganization by the Company, and (iii) any and all equity
securities of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) that may be issued in
respect of, in conversion of, in exchange for or in substitution of, the
Registrable Securities and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof. The Company shall cause any successor or assign
(whether by merger, consolidation, sale of assets or otherwise) to enter into a
new registration rights agreement with the Purchaser on terms substantially the
same as this Agreement as a condition of any such transaction.
4.2 No Inconsistent
Agreements. The Company has not and shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Purchaser in this Agreement. The Parties acknowledge
and agree that the Company may grant registration rights hereafter, which shall
be pari passu with the registration rights of the Purchaser, and shall not be
deemed to conflict with this covenant.
4.3 Amendments and
Waivers. The provisions of this Agreement may be amended and
the Company may take action herein prohibited, or omit to perform any act herein
required to be performed by it, if, but only if, the Company has obtained the
written consent of the Purchaser.
4.4 Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be held to be prohibited by or invalid wider applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
4.5 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
4.6 Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile or similar writing) and shall be deemed given or
made as of the date delivered, if delivered personally or by facsimile (provided
that delivery by facsimile shall be followed by delivery of an additional copy
personally, by mail or overnight courier), one day after being delivered by
overnight courier or four business days after being mailed by registered or
certified mail (postage prepaid for the most expeditious form of delivery,
return receipt requested), to the parties at the following addresses (or to such
other address or facsimile number as a party may have specified by notice given
to the other party pursuant to this provision):
If to the
Company, to:
Northern
Oil and Gas, Inc.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ – ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief
Executive Officer
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
8
If to a
Purchaser, to:
The
address or facsimile number of the Purchaser set forth
on the
signature page of this Agreement.
4.7 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, notwithstanding any conflict
of law provision to the contrary.
4.8 Forum; Service of
Process. Any legal suit, action or proceeding brought by any
party or any of its Affiliates arising out of or based upon this Agreement shall
be instituted in any federal or state court in the State of Minnesota, and each
party waives any objection which it may now or hereafter have to the laying of
venue or any such proceeding, and irrevocably submits to the jurisdiction of
such courts in any such suit, action or proceeding.
4.9 Captions. The
captions, headings and arrangements used in this Agreement are for convenience
only and do not in any way limit or amplify the terms and provisions
hereof.
4.10 No
Prejudice. The terms of this Agreement shall not be construed
in favor of or against any party on account of its participation in the
preparation hereof.
4.11 Words in Singular and Plural
Form. Words used in the singular form in this Agreement shall
be deemed to import the plural, and vice versa, as the sense may
require.
4.12 Remedy for
Breach. The Company hereby acknowledges that in the event of
any breach or threatened breach by the Company of any of the provisions of this
Agreement, the Purchaser would have no adequate remedy at law and could suffer
substantial and irreparable damage. Accordingly, the Company hereby
agrees that, in such event, the Purchaser shall be entitled, and notwithstanding
any election by the Purchaser to claim damages, to obtain a temporary and/or
permanent injunction to restrain any such breach or threatened breach or to
obtain specific performance of any such provisions, all without prejudice to any
and all other remedies that the Purchaser may have at law or in
equity.
4.13 Successors and Assigns,
Third Party Beneficiaries. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto, each assignee of the Purchaser permitted pursuant to Article 3 and their
respective permitted successors and assigns and executors, administrators and
heirs.
4.14 Entire
Agreement. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of any and every
nature among them.
4.15 Attorneys’
Fees. In the event of any action or suit based upon or arising
out of any actual or alleged breach by any party of any representation,
warranty, covenant or agreement in this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys’ fees and expenses of such action
or suit from the other party in addition to any other relief ordered by any
court.
4.16 Termination of
Rights. Upon the expiration of the Registration Period all
rights of the Purchaser under Section 2.1 of this
Agreement will terminate. All rights under this Agreement will
terminate when the Purchaser no longer hold any Registrable
Securities.
4.17 Force
Majeure. Notwithstanding anything to the contrary in this
Agreement, no party to this Agreement will be liable for any failure or delay in
its performance under this Agreement due to any cause beyond its reasonable
control, including natural disasters, war, embargo, riot, sabotage, labor
shortage, act of terrorism, or governmental act, provided that the delayed party
(a) gives the other parties prompt notice of such cause, and (b) uses reasonable
commercial efforts to correct promptly such failure or delay in
performance.
[Signature
Page Follows]
9
IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date and year first written
above.
COMPANY:
NORTHERN
OIL & GAS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title:
Chief
Executive Officer
PURCHASER:
DEEPHAVEN
MCF ACQUISITION LLC
BY:
DEEPHAVEN CAPITAL MANAGEMENT LLC
ITS:
MANAGING MEMBER
/s/ ▇▇▇
▇▇▇▇▇▇▇▇
By: ▇▇▇
▇▇▇▇▇▇▇▇
Title: Assistant
Secretary
ADDRESS: ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
10
|
|
Exhibit
A
|
See
attached agreement, dated as of April 14, 2008, by and between Deephaven MCF
Acquisition LLC and Northern Oil and Gas, Inc.
11