EXHIBIT 10.36
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of December 31,
2004, is made and entered into by and between Far East Energy Corporation
("Company") and Bathgate Capital Partners LLC ("Bathgate") for the benefit of
Bathgate and the purchasers of the Company's common stock, par value $0.001 per
share ("Company Common Stock"), as investors (the "Investors" and together with
Bathgate, the "Participants") in the private placement by the Company of Company
Common Stock.
PRELIMINARY STATEMENTS
A. The Company has entered into (i) Subscription Agreements with the
Investors dated on or about December 31, 2004 (collectively, the "Subscription
Agreements"), pursuant to which the Investors purchased an aggregate 2,252,625
shares of Company Common Stock (the "Subscription Shares"), (ii) Warrants
(collectively, the "Warrant Agreements"), pursuant to which the Investors may
purchase an aggregate 727,088 shares of Company Common Stock ("Warrant Shares"),
and (iii) Placement Agent Warrants dated January 14, 2005 (collectively, the
"Placement Agent Warrants"), pursuant to which Bathgate may purchase an
aggregate 238,377 shares of Company Common Stock (such shares, together with the
Subscription Shares and the Warrant Shares, the "Registrable Securities").
B. Pursuant to the terms of the Subscription Agreements, the Warrant
Agreements, and the Placement Agent Warrants, the Company has agreed to provide
the Investors and Bathgate, as applicable, with certain registration rights with
respect to the shares of Company Common Stock purchased pursuant to the
Subscription Agreements and issuable upon exercise of the Warrant Agreements and
the Placement Agent Warrants.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE 1
REGISTRATION RIGHTS AND PROCEDURES
1.1 Piggyback Registration Rights.
(a) Subject to the terms and conditions of this Agreement, if the Company
intends to file or desires to file a registration statement on Form S-2 or
another appropriate form under the Securities Act of 1933, as amended
("Securities Act"), for the offering or resale of Company Common Stock (other
than by a registration on Form S-8 or Form S-4 or any similar, equivalent, or
successor forms, or any other form not available for registering the Registrable
Securities, or any registration pursuant to a Current Registration Statement or
a Prior Registration Obligation (each as defined below)) or for the offering or
resale of Registrable Securities (a "Registration Statement"), the Company will
notify each holder of Registrable Securities of the proposed filing at least 20
days prior to the filing of the Registration Statement, and will afford each
holder of Registrable Securities an opportunity to include in such Registration
Statement all or any part of the Registrable Securities then held by such
holder. Each holder of Registrable Securities desiring to include in any such
Registration Statement all or part of the Registrable Securities held by such
holder shall, within 15 days after receipt of the above-described notice from
the Company, so notify the Company in writing, and in such notice shall inform
the Company of the number of Registrable Securities such holder wishes to
include in such Registration Statement, provided that if, at any time after
giving written notice of its intention to register any Company Common Stock and
prior to the effective date of the Registration Statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such Company Common Stock, the Company
shall give written notice of such determination to the holders of Registrable
Securities and, thereupon, (i) in the case of a determination not to register,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (without prejudice), and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities for the same period as the delay in registering such
other Company Common Stock. For purposes of this Agreement, (x) the term
"Current Registration Statement" means Amendment No. 1 to the Company's
Registration Statement on Form S-2 filed with the Securities and Exchange
Commission ("SEC") on November 9, 2004 (as the same may hereafter be amended),
and (y) the term "Prior Registration Obligation" means any registration effected
by the Company pursuant to the terms of the Registration Rights Agreement dated
as of December 1, 2004, by and among the Company, RAB Europe Fund Ltd., RAB
Special Situations L.P., Roytor & Co. and Xxxxx Xxxxxx.
(b) Notwithstanding anything contained herein to the contrary, if the
Company has an effective registration statement under the Securities Act
covering the Registrable Securities and becomes eligible to use Form S-3 or such
other short-form registration statement form under the Securities Act, the
Company may, upon 20 days prior notice to all holders of Registrable Securities
included in the "Selling Security Holders" section of such registration
statement, register any Registrable Securities registered but not yet
distributed under such effective registration statement on a short-form
registration statement under the Securities Act and, once such short-form
registration statement is declared effective, de-register such shares under the
previous registration statement, transfer the filing fees from the previous
registration statement (such transfer pursuant to Rule 429 under the Securities
Act, if applicable), or file a post-effective amendment converting the previous
registration statement to a short-form registration statement.
(c) The Company shall not be required to effect a registration statement
pursuant to Section 1.1 (i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and except as may be required under the Securities Act, or
(ii) after the Company has effected one registration pursuant to this Section
1.1 and such registration has been declared or ordered effective by the SEC.
1.2 Effectiveness of Registration Statement. The Company shall use
commercially reasonable efforts to (a) have the Registration Statement declared
effective by the SEC; (b) subject to Section 1.4, prepare and file with the SEC
such amendments and supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective with respect to any Registrable Securities, until the
earlier of (i) the date on which such Registrable Securities covered by the
Registration Statement have been sold by the Participants, (ii) the date on
which either such Registrable Securities are distributed to the public pursuant
to Rule 144 promulgated by the SEC pursuant to the Securities Act (or any
similar provision then in effect) or are saleable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act, or, (iii) the date on
which such Registrable Securities are sold to the Company (but not before the
expiration of the applicable prospectus delivery requirements); and (c) comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by the Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in the Registration Statement.
1.3 Information and Copies.
(a) The Company shall furnish to each seller of Registrable Securities
such number of copies of the Registration Statement, each amendment and
supplement thereto, the prospectus included in the
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Registration Statement (including each preliminary prospectus), and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller.
(b) The Company shall promptly notify each seller of Registrable
Securities 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 to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing and shall use commercially reasonable efforts to
prepare and file with the SEC, and promptly notify each holder of Registrable
Securities of the filing of, a supplement to such prospectus or an amendment to
the Registration Statement so that, as thereafter delivered to the purchasers of
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made and in the case of an amendment to the
Registration Statement, use reasonable best efforts to cause it to become
effective as soon as possible. Upon receipt of any notice from the Company of
the happening of any event of the kind described above, each seller of
Registrable Securities will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such seller's receipt of
the copies of the supplemented or amended prospectus, or until it is advised in
writing by the Company that the use of the prospectus may be resumed.
(c) The Company shall make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to the Registration Statement, and any attorney, accountant, or other
agent retained by any such seller or underwriter, all financial and other
records of the Company (reasonably requested), the Company's applicable
corporate documents and contracts as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors, employees, and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant, or agent in connection with the Registration Statement; provided,
however, that each seller of Registrable Securities agrees that information
obtained by it as a result of such inspections which is deemed confidential
shall not be used by it as the basis for any market transaction in the Company's
securities unless and until such information is made generally available to the
public and each such seller shall cause any attorney, accountant, or agent
retained by such seller or underwriter to keep confidential any such
information.
(d) 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 or suspending the qualification of
any Company Common Stock included in the Registration Statement for sale in any
jurisdiction, the Company will promptly notify each seller of such and will use
reasonable efforts to obtain the withdrawal of such order.
1.4 Listing of Registrable Securities. The Company shall cause all
Registrable Securities to be listed on each securities exchange or other
quotation service on which the Company Common Stock is then listed.
1.5 Underwritten Offering. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall include such information in the notice given pursuant to Section
1.1. In such event, the right of any holder of Registrable Securities to
registration pursuant to Section 1.1 shall be conditioned upon such holder's
agreeing to participate in such underwriting and upon the inclusion of such
holder's Registrable Securities in the underwriting to the extent provided
herein. All holders of Registrable Securities proposing to distribute their
Registrable Securities through such underwriting shall (together with the
Company and other participating
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shareholders) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected by the Company. Notwithstanding any other
provision of this Section 1.5, if the underwriter shall advise the Company in
writing that marketing factors require a limitation of the number of shares to
be underwritten, then the Company shall so advise all holders of Registrable
Securities and the other participating shareholders, and the number of shares of
Registrable Securities and Company Common Stock (collectively, "Underwritten
Securities") that may be included in the registration and underwriting shall be
allocated first to the Company, if it is participating in such registration and
underwriting, and thereafter pro rata among the holders of Registrable
Securities and the other participating shareholders in proportion, as nearly as
practicable, to the respective amounts of Underwritten Securities held by such
holders and participating shareholders at the time of filing the Registration
Statement. No Registrable Securities excluded from the underwriting by reason of
the foregoing underwriter's marketing limitation shall be included in such
registration.
If any holder of Registrable Securities disapproves of the terms of any
such underwriting, such holder may elect to withdraw therefrom by written notice
to the Company and the underwriter. The Registrable Securities so withdrawn
shall also be withdrawn from registration. If by the withdrawal of such
Registrable Securities a greater number of Underwritten Securities held by other
holders of Registrable Securities and other participating shareholders may be
included in such registration (up to the maximum of any limitation imposed by
the underwriter), then the Company may, if it is participating in such
registration and underwriting, include additional Underwritten Securities and
thereafter shall offer to all other holders of Registrable Securities and
participating shareholders who have included Underwritten Securities in the
registration the right to include additional Underwritten Securities in the same
proportion used in determining the underwriter limitation in this Section 1.5.
1.6 Market Stand Off Agreement. By electing to include Registrable Shares
in any registration pursuant to Section 1.1, the holder of Registrable
Securities making such election shall be deemed to have agreed not to effect any
public sale or distribution of securities of the Company of the same or similar
class or classes of the securities included in the Registration Statement or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 or Rule 144A under the Securities Act,
following the filing of a registration statement by the Company with the SEC in
connection with a public offering of its securities and continuing until 90 days
following the date such registration statement is declared effective by the SEC.
1.7 Nature of Sale. Notwithstanding any other provision of this Agreement,
Company Common Stock shall only be treated as Registrable Securities if and so
long as it has not been (a) sold to or through a broker or dealer or underwriter
in a public distribution or a public securities transaction, or (b) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale.
ARTICLE 2
RIGHTS AND UNDERTAKINGS OF
HOLDERS OF REGISTRABLE SECURITIES
2.1 Rights of Holders. Each holder of Registrable Securities shall have
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any of the Company's securities as a result of exercising or
refraining from exercising any such right or rights.
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2.2 Suspension of Sales; Notice of Sales. If any Registrable Securities
are included in a Registration Statement pursuant to the terms of this
Agreement, the holder thereof will not (until further notice) effect sales
thereof after receipt of written notice from the Company of the occurrence of an
event specified in order to permit the Company to correct or update the
Registration Statement or prospectus. Each holder of Registrable Securities
shall notify the Company of the sale of any Registrable Securities within a
reasonable period of time prior to such sale.
2.3 Compliance. If any Registrable Securities are being registered in any
registration pursuant to this Agreement, the holder thereof will comply with all
anti-stabilization, manipulation, and similar provisions of Section 10 of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and any rules
promulgated thereunder by the SEC and, at the Company's request, will execute
and deliver to the Company and to any underwriter participating in such offering
an appropriate agreement to such effect.
2.4 Termination of Effectiveness. Following the end of the period
during which the Company is obligated to keep the Registration Statement current
and effective as described herein, each holder of Registrable Securities
included in the Registration Statement shall discontinue sales thereof pursuant
to such Registration Statement, unless such holder has received written notice
from the Company of its intention to continue the effectiveness of such
Registration Statement with respect to any of such securities which remain
unsold.
2.5 Furnish Information. It shall be a condition precedent to the
Company's obligations to take any action pursuant to this Agreement with respect
to the Registrable Securities of any selling holder that such holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such holder's Registrable
Securities or as the Company shall otherwise reasonably request. The obligations
of the Company under this Agreement shall be suspended as to any holder of
Registrable Securities unless and until such holder complies with the preceding
sentence.
2.6 Underwritten Registration. No holder of Registrable Securities may
participate in any registration hereunder which is underwritten unless such
holder (a) agrees to sell such holder's securities on the basis provided in any
underwriting arrangements approved by the Company; (b) completes and executes
all customary questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; and (c) agrees to pay its pro rata share of all
underwriting discounts and commissions and its own expenses (including, without
limitation, counsel fees).
2.7 Delay of Registration. No holder of Registrable Securities shall have
any right to obtain or seek an injunction restraining or otherwise delaying the
preparation of, or declaration of the effectiveness of, any Registration
Statement initiated in accordance with the terms of this Agreement if such
injunction is the result of any controversy that might arise with respect to the
interpretation or implementation of these provisions.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification by the Company. The Company shall indemnify and hold
harmless, with respect to any Registration Statement filed by it pursuant to
this Agreement, to the fullest extent permitted by law, each holder of
Registrable Securities covered by such Registration Statement, as well as such
holder's officers, directors, employees, agents, and general or limited partners
(and the directors, officers, employees, and agents thereof) and each other
person, if any, who controls such holder within the
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meaning of the Securities Act (collectively, the "Holder Indemnified Parties")
against all losses, claims, damages, liabilities, and expenses joint or several
(including reasonable fees of counsel and any amounts paid in settlement
effected with the Company's consent, which consent shall not be unreasonably
withheld) (collectively, "Losses") to which any such Holder Indemnified Party
may become subject under the Securities Act, the Exchange Act, any other federal
law, any state or common law, any rule or regulation promulgated thereunder, or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) are caused by (a) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement in which such Registrable Securities were included as contemplated
hereby or 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, (b) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary, final, or summary prospectus, together with
the documents incorporated by reference therein (as amended or supplemented if
the Company shall have filed with the SEC any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (c) any violation by the Company of the Securities Act, the
Exchange Act, any other federal law, any state or common law, or any rule or
regulation promulgated thereunder in connection with any such registration;
provided, however, that the Company shall not be liable to any such Holder
Indemnified Party 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 any untrue statement or alleged untrue statement or omission
or alleged omission made in such Registration Statement or amendment thereof or
supplement thereto or in any such preliminary, final, or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder Indemnified Party relating to such
Holder Indemnified Party for use in the preparation thereof; and provided
further, that the Company shall not be liable to any such Holder Indemnified
Party with respect to any preliminary prospectus to the extent that any such
Loss of such Holder Indemnified Party results from the fact that such Holder
Indemnified Party sold Registrable Securities to a person to whom there was not
sent or given, at or before the written confirmation of such sale, a copy of the
prospectus (excluding documents incorporated by reference) or of the prospectus
as then amended or supplemented (excluding documents incorporated by reference)
if the Company previously furnished copies thereof to such Holder Indemnified
Party in compliance with this Agreement and the Loss of such Holder Indemnified
Party results from an untrue statement or omission of a material fact contained
in such preliminary prospectus which was corrected in the prospectus (or the
prospectus as amended or supplemented). Such indemnity and reimbursement of
expenses and obligations shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holder Indemnified Parties and shall
survive the transfer of such securities by such Holder Indemnified Parties.
3.2 Indemnification by Holders. Each holder of Registrable Securities
participating in any registration hereunder shall indemnify and hold harmless,
to the fullest extent permitted by law, the Company, its directors, officers,
employees, and agents, and each person who controls the Company (within the
meaning of the Securities Act) (collectively, "Company Indemnified Parties")
against all Losses to which any Company Indemnified Party may become subject
under the Securities Act, the Exchange Act, any other federal law, any state or
common law, or otherwise, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) are caused by (a) any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement in which such holder's Registrable Securities were
included or 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, (b) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary, final, or summary prospectus, together with
the documents incorporated by reference therein (as amended or supplemented if
the Company shall have filed with the SEC any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be
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stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and in
the cases described in clauses (a) and (b) of this Section 3.2, to the extent,
but only to the extent, that such untrue statement or omission is contained in
any information furnished in writing by such holder relating to such holder for
use in the preparation of the documents described in such clauses (a) and (b),
(c) any violation by such holder of the Securities Act, the Exchange Act, any
other federal law, any state or common law, or any rule or regulation
promulgated thereunder applicable to such holder and relating to action of or
inaction by such holder in connection with any such registration, and (d) with
respect to any preliminary prospectus, the fact that such holder sold
Registrable Securities to a person to whom there was not sent or given, at or
before the written confirmation of such sale, a copy of the prospectus
(excluding the documents incorporated by reference) or of the prospectus as then
amended or supplemented (excluding documents incorporated by reference) if the
Company has previously furnished copies thereof to such holder in compliance
with this Agreement and the Loss of such Company Indemnified Party results from
an untrue statement or omission of a material fact relating to information
provided by such holder contained in such preliminary prospectus which was
corrected in the prospectus (or the prospectus as amended or supplemented). Such
indemnity obligation shall remain in full force and effect regardless of any
investigation made by or on behalf of Company Indemnified Parties and shall
survive the transfer of such securities by such holder.
3.3 Conduct of Indemnification Proceedings. Promptly after receipt by an
identified party hereunder of written notice of the commencement of any action,
suit, proceeding, investigation, or threat thereof with respect to which a claim
for indemnification may be made pursuant hereto, such indemnified party shall,
if a claim in respect thereto is to be made against an indemnifying party, give
written notice to the indemnifying party of the threat or commencement thereof;
provided, however, that the failure to so notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. If any such claim or action referred to hereunder is
brought against any indemnified party and it then notifies the indemnifying
party of the threat or commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other indemnifying party similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party (which counsel
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The indemnifying party shall not be liable to an
indemnified party hereunder for any legal expenses of counsel or any other
expenses incurred by such indemnified party in connection with the defense
thereof, unless the indemnifying party has failed to assume the defense of such
claim or action or to employ counsel reasonably satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party shall have the right
to retain its own counsel, with the fees and expenses to be paid by the
indemnified party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such action. The indemnifying party shall not be
required to indemnify the indemnified party with respect to any amounts paid in
settlement of any action, proceeding, or investigation entered into without the
written consent of the indemnifying party, which consent shall not be
unreasonably withheld. No indemnifying party shall consent to the entry of any
judgment or enter into any settlement without the consent of the indemnified
party unless (a) such judgment or settlement does not impose any obligation or
liability upon the indemnified party other than the execution, delivery, or
approval thereof, and (b) such judgment or settlement includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim and a full release of all persons that may be entitled to or
obligated to provide indemnification or contribution under this Article.
3.4 Contribution. If the indemnification provided for herein is
unavailable to or insufficient to hold harmless an indemnified party hereunder,
then each indemnifying party shall contribute to the
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amount paid or payable by such indemnified party as a result of the Losses (or
actions or proceedings in respect thereof) referred to herein in such proportion
as is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified party on the other in connection with the
statements, omissions, actions, or inactions which resulted in such Losses. The
relative fault of the indemnifying party and the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or the
indemnified party, any action or inaction by any such party, and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement, omission, action, or inaction. 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. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action,
suit, proceeding, investigation, or threat thereof with respect to which a claim
for contribution may be made against an indemnifying party hereunder, such
indemnified party shall, if a claim for contribution in respect thereto is to be
made against an indemnifying party, give written notice to the indemnifying
party of the commencement thereof (if the notice specified herein has not been
given with respect to such action); provided, however, that the failure to so
notify the indemnifying party shall not relieve it from any obligation to
provide contribution which it may have to any indemnified party hereunder,
except to the extent that the indemnifying party is actually prejudiced by the
failure to give notice. The parties hereto agree that it would not be just and
equitable if contribution pursuant hereto were determined by pro rata allocation
or by any other method of allocation which does not take account of equitable
considerations referred to herein.
If indemnification is available hereunder, the indemnifying parties shall
indemnify each indemnified party to the fullest extent provided herein, without
regard to the relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for herein. The provisions hereof
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract, shall remain
in full force and effect regardless of any investigation made by or on behalf of
any indemnified party, and shall survive the transfer of securities by any such
party.
ARTICLE 4
MISCELLANEOUS
4.1 Termination. The obligations under Article 1 shall terminate on the
date on which is the earlier of (a) the date on which the Company's obligations
under Section 1.2 terminate or (b) the date on which all Registrable Securities
covered by the Registration Statement have been sold.
4.2 Assignment; Successors and Assigns. A Participant may assign its
rights hereunder to any permitted transferee of all or any portion of the
Registrable Securities provided that (a) the Company is furnished with written
notice of the name and address of the assignee and the securities with respect
to which such rights are being assigned, and (b) the Company shall have the
right to require any holder of Registrable Securities to execute a counterpart
of this Agreement as a condition to such holder's claim to any rights hereunder.
This Agreement and all provisions thereof shall be binding upon, inure to the
benefit of, and are enforceable by the parties hereto and their respective
successors and permitted assigns.
4.3 Notices. All notices, requests, and other communications hereunder
shall be in writing and will be deemed to have been duly given and received (a)
when personally delivered, (b) when sent by facsimile upon confirmation of
receipt, (c) two business days after the day on which the same has been
delivered prepaid to a nationally recognized courier service, or (d) five
business days after the deposit in
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the United States mail, registered or certified, return receipt requested,
postage prepaid, in each case addressed as follows:
(a) if to the Company, then at 000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000,
Xxxxxxx, Xxxxx 00000, Attn: Chief Executive Officer, facsimile number, (832)
598-0479, with a copy to Xxxx Xxxxxxxx, Esq., Xxxxx & XxXxxxxx, LLP, 2300
Xxxxxxxx Xxxx Center, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, facsimile number,
(000) 000-0000; or
(b) if addressed to Bathgate, then at Bathgate Capital Partners LLC, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx
X. X. Xxxxxx, Senior Managing Partner, facsimile number, (000) 000-0000.
(c) if addressed to a Participant (other than Bathgate), then at the
address and facsimile number for such Participant set forth in the Subscription
Agreement of such Participant and otherwise contained in the Company's books and
records. No notice to Bathgate shall serve as notice to any other Participant.
Bathgate, Investor or the Company may agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures reasonably approved by it; provided that approval of such procedures
may be limited to particular notices or communications. Any party hereto from
time to time may change its address, facsimile number, or other information for
the purpose of notices to that party by giving notice specifying such change to
the other parties hereto.
4.4 Public Announcements. Except as otherwise required by law, a
Participant shall not issue any press release or make any other public
announcement with respect to the transactions contemplated hereby without the
approval of the Company, which approval shall not be unreasonably withheld or
delayed.
4.5 Governing Law; Jurisdiction.
(a) This Agreement, and the provisions, rights, obligations, and
conditions set forth herein, and the legal relations between the parties hereto,
including all disputes and claims, whether arising in contract, tort, or under
statute, shall be governed by and construed in accordance with the laws of the
State of Texas without giving effect to its conflict of law provisions.
(b) Any and all disputes arising out of, or in connection with, the
interpretation, performance, or nonperformance of this Agreement or any and all
disputes arising out of, or in connection with, transactions in any way related
to this Agreement and/or the relationship between the parties shall be litigated
solely and exclusively before the United States District Court for the Southern
District of Texas, Houston Division. The parties consent to the in personam
jurisdiction of said court for the purposes of any such litigation, and waive,
fully and completely, any right to dismiss and/or transfer any action pursuant
to 28 U.S.C. Section 1404 or 1406 (or any successor statute). In the event the
United States District Court for the Southern District of Texas, Houston
Division does not have subject matter jurisdiction of said matter, then such
matter shall be litigated solely and exclusively before the appropriate state
court of competent jurisdiction located in Xxxxxx County, State of Texas.
4.6 No Third Party Beneficiary. This Agreement shall not confer any rights
or remedies upon any person other than the parties hereto and their respective
successors and permitted assigns.
4.7 Severability. In the event that any provision of this Agreement or the
application of any provision hereof is declared to be illegal, invalid, or
otherwise unenforceable by a court of competent
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jurisdiction, the remainder of this Agreement shall not be affected except to
the extent necessary to delete such illegal, invalid, or unenforceable provision
unless that provision held invalid shall substantially impair the benefits of
the remaining portions of this Agreement.
4.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction, or effect.
4.9 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original instrument and all of which
together shall constitute one and the same instrument.
4.10 Entire Agreement. This Agreement embodies the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
4.11 Amendment; Waiver. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company, Bathgate and Participants
beneficially owning not less than fifty percent (50%) of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to or
departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of a Participant and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Participants
may be given by such Participant; provided that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
4.12 Further Assurances. Each party shall cooperate and take such action
as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
the undersigned, thereto duly authorized, as of the date first set forth above.
FAR EAST ENERGY CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: President, CEO
BATHGATE CAPITAL PARTNERS LLC
By: /s/ Xxxxx Xxxxxx
--------------------------
Name: Xxxxx Xxxxxx
Title: Senior Managing Partner
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