REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
<*> day of <*>, 2006 between BARNABUS ENERGY, INC. (the "Corporation"), a
corporation incorporated under the laws of the State of Nevada, and the PARTIES
LISTED IN SCHEDULE "A" HERETO (the "CANADIAN Sellers").
WHEREAS pursuant to a share purchase agreement dated as of the date hereof
(the "STOCK PURCHASE AGREEMENT") between the Corporation, 2093603 Ontario Inc.
("EXCHANGECO"), Solar Roofing Systems Inc. (the "COMPANY"), the Canadian Sellers
and all of the other shareholders of the Company other than the Corporation
(collectively, the "SELLERS"), Exchangeco has agreed to acquire all of the
common shares of the Company (the "SOLAR SHARES") that the Corporation does not
currently own;
AND WHEREAS in accordance with the Stock Purchase Agreement, the Sellers
will exchange their Solar Shares for cash and either (i) common shares in the
capital of the Corporation ("BEI SHARES") or (ii) in the case of the Canadian
Sellers, exchangeable Class A shares in the capital of Exchangeco (the
"EXCHANGEABLE SHARES");
AND WHEREAS the Exchangeable Shares may be retracted or redeemed for BEI
Shares, subject to the overriding right of the Corporation to directly or
indirectly purchase the Exchangeable Shares in certain circumstances in exchange
for BEI Shares;
AND WHEREAS in accordance with the Share Purchase Agreement, the
Corporation, Exchangeco and the Canadian Sellers have agreed to enter into a
support agreement (the "SUPPORT AGREEMENT");
AND WHEREAS the execution of and delivery of this Agreement is a condition
precedent to the obligations of each Canadian Seller under the Stock Purchase
Agreement and Support Agreement;
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this Agreement and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto
covenant and agree as follows respecting the registration of the Registrable
Stock under the Securities Act (as defined below) and/or the qualification of
such shares for trading under the securities laws of the provinces of Canada:
1. CERTAIN DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein and not
defined shall have the same meaning as are ascribed to such terms in the Stock
Purchase Agreement or Support Agreement.
As used in this Agreement (including the recitals hereto), the following
terms shall have the following respective meanings:
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(a) "COMMON SHARES" shall mean the shares of common stock, par value
$0.001 per share, of the Corporation.
(b) "EXCHANGE ACT" shall mean the United States Securities Exchange Act
of 1934, as amended, or any similar federal statute, and the rules
and regulations of the SEC thereunder, all as the same shall be in
effect at the time.
(c) "FAMILY MEMBERS" shall mean in respect of an individual, any parent,
spouse, child, spouse of a child, grandchild, sibling and/or trust
created for the benefit of any such person(s), trustee, and/or the
estate of such person(s).
(d) "PROSPECTUS" shall mean the prospectus included in any Registration
Statement, as such documents may be amended or supplemented by an
amendment or prospectus supplement, including post-effective
amendments, and all material incorporated by reference in such
prospectus.
(e) "REGISTER", "REGISTERED" and "REGISTRATION" shall mean a
registration effected by preparing and filing with the SEC a
Registration Statement in compliance with the Securities Act, and
the automatic effectiveness or ordering of effectiveness of such
Registration Statement.
(f) "REGISTRATION EXPENSES" shall mean the expenses so described in
Section 4.
(g) "REGISTRATION STATEMENT" shall mean a registration statement filed
by the Corporation with the SEC for a public offering and sale of
securities of the Corporation other than a registration statement on
Form S-8 or Form S-4 or their successors, or any form for a similar
limited purpose, or any registration statement covering only
securities proposed to be issued in exchange for securities or
assets of another corporation.
(h) "REGISTRABLE STOCK" shall mean (i) Common Shares of the Corporation
held by or issuable to any Canadian Seller which Common Shares were
issued or are issuable upon the purchase or exchange of Exchangeable
Shares or pursuant to the Exchange Rights Agreement dated of even
date hereof between the Corporation, Exchangeco and the Canadian
Sellers; and (ii) any Common Shares of the Corporation issued or
issuable in respect of share splits, share dividends,
reclassifications, recapitalizations, mergers, consolidations,
reorganizations or other similar events affecting the Common Shares
described in clause (i) held by any Seller from time to time;
provided, however, that "Registrable Stock" shall not include any
(a) Common Shares that have been registered under the Securities Act
pursuant to an effective Registration Statement filed thereunder and
disposed of in accordance with the Registration Statement covering
such shares; (b) Common Shares that have been publicly sold pursuant
to Rule 144 under the Securities Act or any other exemption from the
registration requirements of the Securities Act available from time
to time and (c) Common Shares that have been held for one year in
accordance with Rule 144(d) provided that the Corporation shall have
satisfied its covenants under Section 6 hereof. (i) "SEC" shall mean
the United States Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
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(j) "SECURITIES ACT" shall mean the United States Securities Act of
1933, as amended, or any similar federal statute, and the rules and
regulations of the SEC thereunder, all as the same shall be in
effect at the time.
(k) "SELLING EXPENSES" shall mean the expenses so described in Section
4.
2. REQUIRED REGISTRATION
The Corporation shall qualify or register all of the shares of Registrable
Stock with a Registration Statement filed by the Corporation (which registration
statement shall in any event be filed in sufficient time for the registration
statement to have been declared effective by the SEC prior to the earlier of (i)
the first anniversary of the date hereof or (ii) immediately prior to the
exercise by Exchangeco of its redemption rights pursuant to Section 7 of the
Share Provisions in respect of any Exchangeable Shares), the effect of which
Registration Statement is (when the same is effective) to enable the shares of
Registrable Stock, on their issue and subject to Section 8 hereof, to be
immediately and freely traded thereafter in the United States on all stock
exchanges and quotation systems on which outstanding Common Shares (or such
other shares or securities derived therefrom) have been listed by the
Corporation and remain listed and are quoted or posted for trading at such time.
The Corporation shall keep such Registration Statement effective and current
until the first anniversary of the date that all Exchangeable Shares (other than
Exchangeable Shares held by the Corporation or its affiliates) are exchanged (or
deemed to be exchanged) or sold for shares of Registrable Stock.
3. REGISTRATION PROCEDURES
(a) If and whenever the Corporation is required by the provisions of
Section 2 to effect the registration of any shares of Registrable
Stock, the Corporation will, as expeditiously as possible, prepare
and file with the SEC a Registration Statement with respect to such
securities and use its commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective as
specified in Section 2.
(b) If and whenever the Corporation is required by the provisions of
Section 2 to effect the registration of any shares of Registrable
Stock, the Corporation will, use commercially reasonable efforts to
do the following as expeditiously as possible:
(i) prepare and file with the SEC, such amendments and supplements
to such Registration Statement and/or the Prospectus as may be
necessary to keep such Registration Statement effective for
the period specified in Section 2 and comply with the
provisions of the Securities Act with respect to the
disposition of all Registrable Stock covered by such
Registration Statement during such period;
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(ii) furnish to each Seller and to each underwriter such number of
copies of the Registration Statement and/or the Prospectus
included therein (including each preliminary Prospectus), in
conformity with the requirements of the Securities Act and
such other documents as such persons reasonably may request,
in order to facilitate the public sale or other disposition of
the Registrable Stock covered by such Registration Statement
and/or prospectus;
(iii) register or qualify the Registrable Stock covered by such
Registration Statement filed with the SEC under the securities
or "blue sky" laws of such jurisdictions as any Seller or, in
the case of an underwritten public offering, the managing
underwriter reasonably shall request, provided, however, that
the Corporation shall not for any such purpose be required to
qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified
or to consent to general service of process in any such
jurisdiction;
(iv) assist a holder of Registrable Stock (at the holder's expense)
in the obtaining of an order or exemption from Canadian
provincial securities regulators in order to enable such
holder to be able to immediately and freely trade such
Registrable Stock thereafter for purposes of Canadian
provincial securities law on any securities exchange or
quotation system on which the Corporation is then listed
(subject to any restrictions of general application on
transfer by reason of a holder being a "control person" for
purposes of Canadian provincial securities law);
(v) list the Registrable Stock covered by such Registration
Statement with any securities exchange or quotation system on
which the Common Shares of the Corporation are then listed and
pay all fees associated with such listing;
(vi) appoint a transfer agent and registrar for all such
Registrable Stock not later than the effective date of such
Registration Statement;
(vii) immediately notify each Seller and each underwriter under such
Registration Statement, at any time when a Prospectus relating
thereto is required to be delivered, of the occurrence of any
event of which the Corporation has knowledge as a result of
which such Prospectus, as then in effect, includes an untrue
statement of a 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;
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(viii) furnish, if the offering is underwritten, at the request of
any Seller, on the date that Registrable Stock is delivered to
the underwriters for sale pursuant to such registration: (A)
an opinion, dated such date, of counsel representing the
Corporation for the purposes of such registration, addressed
to the underwriters and to each Seller, stating that such
Registration Statement, or any supplement thereto, has become
effective under the Securities Act and that (I) to the best
knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for
that purpose have been instituted or are pending or
contemplated under the Securities Act, and (II) the
Registration Statement, the Prospectus and each amendment or
supplement thereof comply as to form in all material respects
with the requirements of the Securities Act (except that such
counsel need not express any due diligence opinion or opinion
as to financial statements contained therein); (B) a letter
dated such date from the independent public accountants
retained by the Corporation, addressed to the underwriters and
to each Seller stating that they are independent public
accountants within the meaning of the Securities Act, and
that, in the opinion of such accountants, the financial
statements of the Corporation included in the Registration
Statement, or the Prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act;
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(ix) make available for inspection by each Seller, any underwriter
participating in any distribution pursuant to such
Registration Statement, and any attorney, accountant or other
agent retained by the Seller or underwriter, all relevant
financial and other records, pertinent corporate documents and
properties of the Corporation, and cause the Corporation's
officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such
Registration Statement;
(x) promptly notify each Seller: (A) that any supplement to any
Prospectus forming a part of such Registration Statement has
been filed; and (B) promptly after it shall receive notice
thereof of the time when such Registration Statement has
become effective;
(xi) notify each Seller of any request by the SEC for the amending
or supplementing of such Registration Statement or Prospectus;
and
(xii) in the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement, or of any order
suspending or preventing the use of any related Prospectus,
use its reasonable best efforts promptly to obtain the
withdrawal of such order.
(xiii) continue the listing or quotation of the Common Shares on
each national exchange or quotation system on which the Common
Shares, to maintain are listed or quoted on the date hereof
and on any national exchange or quotation system on which the
Common Shares are qualified for listing or quotation after the
date hereof, until such time as the Registrable Stock becomes
freely tradable in the United States without registration
under the Securities Act.
If the Corporation has delivered a Prospectus to any Seller and, after
having done so, the Prospectus is amended to comply with the requirements of the
Securities Act, the Corporation shall promptly notify the Seller.
In connection with each registration hereunder, each Seller will furnish
to the Corporation in writing such information with respect to the Seller and
the proposed distribution by it as shall be necessary in order to comply with
United States and applicable state securities laws, as applicable and any
requests made by the SEC.
In connection with each registration pursuant to Section 2 covering an
underwritten public offering, subject to the terms and provisions hereof, the
Corporation and each Seller agree to enter into a written agreement with the
managing underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for such
an arrangement between such underwriter and companies of the Corporation's size
and investment stature.
4. EXPENSES
All expenses incurred by the Corporation in complying with Section 2
including, without limitation, all registration and filing fees, printing
expenses, listing fees, translation fees, fees and disbursements of counsel and
independent public accountants for the Corporation, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes and fees of transfer agents and registrars, are
hereinafter referred to as "REGISTRATION Expenses". All other fees, expenses,
discounts and commissions incurred by the Canadian Sellers including without
limitation underwriting discounts, brokerage commissions and legal fees are
hereinafter referred to as "SELLING EXPENSES".
The Corporation will pay all Registration Expenses in connection with each
Registration Statement under Section 2. All Selling Expenses in connection with
each Registration Statement under Section 2 shall be borne by the participating
sellers (including the Corporation if the Corporation is a seller) in proportion
to the number of shares sold by each, except, as between participating sellers
other than the Corporation, as such participating sellers may otherwise agree.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration or qualification of any of the
Registrable Stock under the Securities Act pursuant to Section 2 the
Corporation will indemnify and hold harmless each Seller thereunder,
each officer, director, partner, member, agent and employee of each
Seller, each signatory of the Prospectus or Registration Statement
on behalf of each Seller, each underwriter of such Registrable Stock
thereunder and each other person, if any, who controls each Seller
or underwriter within the meaning of the Securities Act or the
Exchange Act (collectively the "CORPORATION INDEMNITEES"), against
any losses, claims, damages or liabilities, joint or several, to
which such Corporation Indemnitees may become subject under the
Securities Act, the Exchange Act, state securities or "blue sky"
laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
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based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which
such Registrable Stock was registered under the Securities Act
pursuant to Section 2 any preliminary Prospectus or final Prospectus
contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading (but only if such is
not corrected in the final Prospectus), or arise out of or are based
upon any violation or alleged violation by the Corporation of the
Securities Act, the Exchange Act or any applicable state securities
laws in connection with any such Registration Statement or
Prospectus, and will reimburse each such Corporation Indemnitee for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that the Corporation
will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with or in reliance upon
information furnished by such Seller, any such underwriter or any
such controlling person in writing specifically for use in such
Registration Statement or Prospectus.
(b) In the event of a registration of any of the Registrable Stock under
the Securities Act pursuant to Section 2, each Seller will indemnify
and hold harmless the Corporation, each person, if any, who controls
the Corporation within the meaning of the Securities Act or the
Exchange Act, each officer of the Corporation who signs the
Registration Statement, each director of the Corporation, each
underwriter and each person, if any, who controls any underwriter
within the meaning of the Securities Act or the Exchange Act,
against all losses, claims, damages or liabilities, joint or
several, to which the Corporation or such officer, director,
underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or "blue sky"
laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement under which
such Registrable Stock was registered under the Securities Act
pursuant to Section 2, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading
(but only if such is not corrected in the final Prospectus), or
arise out of or are based upon any violation or alleged violation by
such Seller of the Securities Act, the Exchange Act or any
applicable state securities laws in connection with any such
Registration Statement or Prospectus, and will reimburse the
Corporation and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably
incurred by them in
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connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that each Seller
will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such Seller
furnished in writing to the Corporation by the Seller
specifically for use in such Registration Statement or
Prospectus, and the Seller will reimburse, as incurred, any legal
or other expenses reasonably incurred by any person intended to
be indemnified pursuant to this subsection in connection with
investigating or defending any such loss, claim, damage or
liability, provided, further, that the liability of the Seller
hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the
proportion that the public offering price of the shares sold by
the Seller under such Registration Statement bears to the total
public offering price of all securities sold thereunder, but not
in any event to exceed the net proceeds received by the Seller
from the sale of Registrable Stock covered by such Registration
Statement.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action (including any governmental
action), such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which
it may have to such indemnified party other than under this Section
5 and shall only relieve it from any liability which it may have to
such indemnified party under this Section 5 if and to the extent the
indemnifying party is prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof
with counsel reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party
of its election so to assume and undertake the defense thereof, the
indemnifying party shall not be liable to such indemnified party
under this Section 5 for any legal expenses subsequently incurred by
such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel
so selected, provided, however, that, if the defendants in any such
action include both the indemnified party and the indemnifying party
and the indemnified party has concluded that there are reasonable
defenses available to it (based on an opinion of nationally
recognized legal counsel in the United States) which are different
from or additional to those available to the indemnifying party or
if the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in
the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to
be reimbursed by the indemnifying party as incurred. No indemnifying
party, in the defense of any such claim or litigation shall, except
with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect
of such claim or litigation, and no indemnified party shall consent
to entry of any judgment or settle such claim or litigation without
the prior written consent of the indemnifying party, and such
indemnifying party shall have no obligation whatsoever with respect
to any claim that has been so settled or any judgment that has been
so consented to without such consent.
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(d) In order to provide for just and equitable contribution to joint
liability in circumstances in which the indemnification provided in
this Section 5 is due in any case in which either (i) any Seller
exercising rights under this Agreement, or any controlling person of
such Seller, makes a claim for indemnification pursuant to this
Section 5 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for
indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of such Seller or any
controlling person thereof in circumstances for which
indemnification is provided under this Section 5; then, and in each
such case, the Corporation and such Seller will contribute to the
aggregate losses, claims, damages or liabilities to which they may
be subject (after contribution from others) in such proportion so
that such Seller is responsible for the portion represented by the
percentage that the public offering price of its Registrable Stock
offered by the Registration Statement bears to the public offering
price of all securities offered by such Registration Statement, and
the Corporation is responsible for the remaining portion; provided,
however, that, in any such case, (A) such Seller will not be
required to contribute any amount in excess of the public offering
price of all such Registrable Stock offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation.
Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made
against another party or parties under this Section 5, notify such
party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution
may be sought shall not relieve such party from any other obligation
it or they may have thereunder or otherwise under this Section 5. No
party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its prior written consent.
(e) The obligations of the Corporation and each Seller under this
Section 5 shall survive the completion of any offering of
Registrable Stock under a Registration Statement whether under this
Agreement or otherwise.
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6. RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable
Stock to the public without registration, at all times after 90 days after any
Registration Statement covering a public offering of securities of the
Corporation under the Securities Act shall have become effective, the
Corporation agrees to:
(a) use its best efforts to make and keep public information available,
as those terms are understood and defined in Rule 144 under the
Securities Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Corporation under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Registrable Stock forthwith upon request a
written statement by the Corporation as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly
report of the Corporation, and such other reports and documents so
filed by the Corporation as such holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing such
holder to sell any Registrable Stock without registration.
7. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
The Corporation represents and warrants to each Seller as follows:
(a) the execution, delivery and performance of this Agreement by the
Corporation have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any
court or other agency of government, the organization documents of
the Corporation or any provision of any indenture, agreement or
other instrument to which it or any or its properties or assets is
bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture,
agreement or other instrument or result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Corporation;
and
(b) this Agreement has been duly executed and delivered by the
Corporation and constitutes the legal, valid and binding obligation
of the Corporation, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally.
8. RESTRICTIONS ON SALES OF COMMON STOCK
(a) Before any Canadian Seller sells any shares of Common Stock pursuant
to an effective Registration Statement, such Canadian Seller shall
inquire of the Corporation whether any event as described in Section
3(b)(vii) has occurred, and if informed that such an event has
occurred such Seller shall refrain from selling any shares of Common
Stock until the Corporation notifies such Canadian Seller that the
Prospectus may be used. The Corporation shall respond promptly (and
in any event within two Business Days after the date on which such
Canadian Seller inquiry is made) to any Canadian Seller inquiry
under this Section 8(a), and such response shall clearly indicate
whether any such event has occurred.
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(b) If the sale of Common Stock is not prohibited by Section 8(a),
then each Canadian Seller may sell shares of Common Stock but
shall limit such sales pursuant to an effective Registration
Statement in any calendar quarter to the greater of (i) the
number of shares the sale of which is necessary to pay the income
tax liability of such Canadian Seller resulting from the receipt
of Common Stock, and (ii) one percent (1%) of the total number of
shares the Corporation then has outstanding as shown by the most
recent report or statement published by the Corporation.
9. MISCELLANEOUS
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the
benefit of the respective successors and assigns of the parties
hereto (including without limitation transferees of any Registrable
Stock), whether so expressed or not, provided, however, that
registration rights conferred herein shall only inure to the benefit
of a transferee of Registrable Stock (and transferees of such
transferees) if there is transferred to such transferee at least
fifty percent (50%) of the Registrable Stock held by any Canadian
Seller on the date hereof. Each permitted transferee of Registrable
Stock shall execute a counterpart of and become a party to this
Agreement and shall be deemed to be a "Canadian Seller" for all
purposes. Each of the parties hereto agrees to any transfer of a
Canadian Seller's rights hereunder in accordance with this Section
9(a).
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered by courier or sent by
telecopier, addressed as follows:
(i) if to any Canadian Seller:
To the address set forth for such Canadian Seller in the Stock
Purchase Agreement.
with a copy to:
Fasken Xxxxxxxxx XxXxxxxx
Toronto Dominion Bank Tower
X.X. Xxx 00
Xxxxxxx-Xxxxxxxx Xxxxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxx
Fax No: (000) 000-0000
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(ii) if to any subsequent holder of Registrable Stock, to it at
such address as may have been furnished to the Corporation in
writing by such holder;
(iii) if to the Corporation:
Barnabus Energy, Inc.
000 Xxx Xx Xx Xxxxx #000
Xxxxxx Xxxxx, XX 00000
U.S.A.
Attention: Xxxxx Xxxxxxx, Chief Executive Officer
Fax No: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: D. Xxxxx Xxxxx, Esq.
Fax No: 000.000.0000
(iv) in any case, at such other address or addresses as shall have
been furnished in writing to the Corporation (in the case of
any Canadian Seller) or to any Seller (in the case of the
Corporation) in accordance with the provisions of this
paragraph.
Any demand, notice or other communication made or given by courier
shall be conclusively deemed to have been given on the second (2nd)
business day following the deposit thereof with the courier and, if
made or given by fax, on the day of transmittal thereof (provided
the original copy is immediately forwarded by courier).
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to its conflict of
law provisions. Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of New York with respect to
any matter arising hereunder or related hereto. The parties hereto
agree that any action or proceeding arising out of or relating to
this Agreement may be instituted in the courts of the State of New
York, waives any objection which it may have now or hereafter to the
venue of any such action or proceeding, irrevocably submits to the
jurisdiction of the said courts in any such action or proceeding,
agrees to be bound by any judgment of the said courts and not to
seek, and hereby waives, any review of the merits of any such
judgment by the courts of any other jurisdiction.
(d) This Agreement may not be amended or modified without the written
consent of the parties hereto.
13
(e) Each Seller shall not have any right to take any action (or to
withhold any action required herein) to restrain, enjoin, hinder or
delay any registration under the Securities Act as the result of any
disagreement that may result over the interpretation of this
Agreement, and each party hereto agrees not to do so.
(f) This Agreement may be executed counterparts and/or by facsimile,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
(g) If requested in writing by the underwriters for the initial
firm-commitment underwritten public offering of securities of the
Corporation, each Seller shall agree not to sell publicly any shares
of Registrable Stock (other than shares of Registrable Stock being
registered or qualified in such offering), without the consent of
such underwriters, for a period of not more than 120 days following
the effective date of the Registration Statement relating to such
offering; provided, however, that: (i) all persons entitled to
registration rights with respect to Common Shares who are not
parties to this Agreement, all other persons selling Common Shares
in such offering, all persons holding in excess of 1% of the capital
stock of the Corporation on a fully diluted basis and all executive
officers and directors of the Corporation shall also have agreed not
to sell publicly their Common Shares under the circumstances and
pursuant to the terms set forth in this Section 9(g); and (ii) such
agreement shall only apply to the first Registration Statement
covering Common Shares of the Corporation to be sold on its behalf
to the public in an underwritten offering. Notwithstanding the
foregoing, any agreement entered into pursuant to this Section 9(g)
must permit the transfer by each Seller to: (i) a partner, member,
Family Member or affiliate of such Seller, or such partner's partner
or member's partner or member; (ii) a fund, limited partnership, or
legal entity that is managed or controlled by, is under common
control with, or whose manager or general partner, as applicable, is
the same as or is an affiliate of the manager or general partner of
such Seller; or (iii) to any person who would be a transferee of the
holder permitted under the Shareholders' Agreement, so long as, in
each such case, such transferee also agrees to enter into and be
bound by a lock-up agreement pursuant to this Section 9(g). (h) In
addition to any and all other remedies that may be available at law
in the event of any breach of this Agreement, each party shall be
entitled to specific performance of the agreements and obligations
of the other parties hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent
jurisdiction.
(i) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not
in any manner affect or render illegal, invalid or unenforceable any
other provision of this Agreement, and this Agreement shall be
carried out as if any such illegal, invalid or unenforceable
provision were not contained herein.
14
IN WITNESS WHEREOF the parties have executed this Agreement on and as of
the day first above written.
BARNABUS ENERGY, INC.
By:
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
SELLERS:
--------------------------------------
Xxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxx
15
--------------------------------------
Xxxxxx Xxxxx
--------------------------------------
Xxxx Xxxxxx
--------------------------------------
Krino Kafato
--------------------------------------
Xxxxxx Kafato
--------------------------------------
Xxxxx Knights
--------------------------------------
Xxxxxxx Xxxxx
16
--------------------------------------
Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxx
--------------------------------------
Xxxxxx Xxxxxx
1594505 ONTARIO INC.
By:
--------------------------------------
Name:
Title:
--------------------------------------
Xxxxxxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx
17
--------------------------------------
Xxxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxx
MARGREG LTD.
By:
--------------------------------------
Name:
Title:
18
XXXX FAMILY TRUST
By:
------------------------------------
Xxxxxx Xxxx, Trustee
By:
------------------------------------
Xxxxxxxx Xxxx, Trustee
