REGISTRATION AGREEMENT
Exhibit
10.02
This
Agreement is entered into as of this 26th day of February, 2007, by and between
Triangle Petroleum Corporation, a Nevada corporation (“Company”), and the
persons designated as the investors on the signature pages of this Agreement
(“Investors”).
WHEREAS,
Investors have agreed to purchase from the Company the number of shares of
common stock of the Company that is indicated on the signature pages of the
respective Investors (in the aggregate, the “Shares”), pursuant to a Securities
Purchase Agreement dated as of the date set forth on the Company’s signature
page to this Agreement (“Securities Purchase Agreement”);
WHEREAS,
as an inducement to the Investors to purchase the Shares, the Company has agreed
to file, at its own expense, a registration statement covering resales of the
Shares by the Investors in non-underwritten transactions; and
WHEREAS,
the Investors and the Company desire to enter into this Agreement providing
for
matters relating to such registration;
NOW,
THEREFORE, in consideration of the mutual agreements contained herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Investors and the Company agree as
follows:
1. Filing
of Registration Statement.
The
Company shall file a shelf registration statement under the Securities Act
of
1933, as amended (“Act”), on Form SB-2 (subject to the last sentence of this
Section 1) to register resales or other dispositions of Registrable Securities
by Investors in non-underwritten transactions (“Registration Statement”). The
Company shall file the Registration Statement as soon as practicable after
the
date hereof and in no event more than 30 days thereafter, and such Registration
Statement shall not include any securities other than Registrable Securities.
“Registrable Securities” means all of the Shares, together with any shares of
Common Stock (as defined in the Securities Purchase Agreement) issued or
issuable with respect to the Shares as a result of any stock split, dividend
or
other distribution, recapitalization or similar event with respect to the
Shares. In the event that Form SB-2 is not available for the registration of
the
resale of Registrable Securities hereunder, the Company shall (i) register
the
resale of the Registrable Securities on another appropriate form reasonably
acceptable to the holders of at least a majority of the Registrable Securities
and (ii) undertake to register the Registrable Securities on Form SB-2 as soon
as such form is available, provided that the Company shall maintain the
effectiveness of the Registration Statement then in effect until such time
as a
Registration Statement on Form SB-2 covering the Registrable Securities has
been
declared effective by the Commission (as defined below).
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2. Effectiveness
of Registration Statement.
The
Company shall use its best efforts to cause the Registration Statement to become
effective under the Act as soon as practicable after the filing of the
Registration Statement. In addition, the Company shall file,
during the
period specified in Section 7(i),
a post
effective amendment to the
Registration Statement containing
the information required by Regulation S-K, Item 512(a)(1)(i)-(iii). In the
event that during the period specified in Section 7(i), the Company ceases
to be
eligible to use Form SB-2, the Company will promptly file a new registration
statement on the form for which it is then eligible.
3. State
Registration or Qualification.
The
Company shall use its best efforts to register or qualify the Registrable
Securities covered by the Registration Statement for public sale under the
securities or blue sky laws of the respective states of principal residence
of
the Investors and such other states that are reasonably designated by any of
them in writing as a state in which sales of the Registrable Securities may
be
made, if such registration or qualification is necessary; provided, however,
that the Company shall not be required by this Section 3 to qualify to do
business as a foreign corporation or otherwise to subject itself to taxation
therein, or to file any general consent to service of process in any
state.
4. Delivery
of Prospectuses; Suspension of Sales.
The
Company shall provide to the Investors the number of prospectuses relating
to
the Registrable Securities as the Investors shall each reasonably request to
enable the Investors to comply with any applicable prospectus delivery
requirements. If, during the effectiveness of the Registration Statement, an
intervening event should occur that, in the good faith opinion of the Company’s
Board of Directors and the Company’s counsel, makes the prospectus included in
the Registration Statement no longer comply with the Act, after notice from
the
Company to the Investors of the occurrence of such an event, the Investors
shall
make no further sales or other dispositions, or offers therefor, of Registrable
Securities under the Registration Statement until they receive from the Company
notice that sales and dispositions, and offers therefor, may resume and, if
the
prospectus has been changed other than by the filing of a report that is
incorporated therein by reference without any other revision, copies of a new,
amended or supplemented prospectus complying with the Act, unless the
Commission’s rules do not then require physical delivery of such new, amended or
supplemented prospectus. The Company shall keep the Investors fully informed
as
to the status of its efforts, which shall be prompt and diligent, to cause
such
new, amended or supplemented prospectus to be available for use by the
Investors, in each such case as soon as practicable and in no event more than
25
days following such notice.
5. Expenses
of Registration.
The
Company shall bear all of the expenses of registration or qualification of
the
Registrable Securities under the Act and under the state securities or blue
sky
laws as provided in Section 3 hereof; provided, however, that each Investor
shall bear its own selling expenses or commissions attributable to the
Registrable Securities being sold by such Investor and shall bear fees and
expenses of its own counsel, if any.
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6. Information
to be Furnished by Investor.
Each
Investor shall furnish in writing to the Company all information within such
Investor’s possession or knowledge required by the applicable rules and
regulations of the Securities and Exchange Commission (“SEC or Commission”),
including the information specified by Items 507 and 508 of Regulation S-K
under
the Act.
7. Procedures.
The
Company shall (a) notify the Investors by the end of the business day following
the day on which it receives notice thereof, of the time when the Registration
Statement has become effective or any supplement to any prospectus forming
a
part of the Registration Statement has been filed; (b) notify the Investors
promptly of any request by the Commission for the amending or supplementing
of
the Registration Statement or prospectus or for additional information and
shall
use its best efforts to file any such amendment or supplement within 10 days,
and in no event more than 20 days, after such request or receipt of comments
from the Commission’s staff (adding to each such number of days any delay
exceeding five days caused by the Investors in submitting, following written
request therefor made by the Company, any information required from them to
prepare such amendment or supplement); (c) prepare and file with the Commission,
promptly upon any Investor’s request, any amendment or supplement to such
registration statement or prospectus which, in the opinion of counsel for the
Investor and counsel for the Company, may be necessary or desirable in
connection with the distribution of the Registrable Securities by such Investor;
(d) prepare and promptly file with the Commission, and promptly notify the
Investors of the filing of, such amendment or supplement to the Registration
Statement or prospectus as may be necessary to correct any misstatement or
omission, if at any time when a prospectus relating to the Registrable
Securities is required to be delivered under the Act, any event shall have
occurred as a result of which any such prospectus would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading and such filing shall be made
promptly by the Company but in no event later than the time limitation set
forth
in Section 4; (e) in case the Investor is required to deliver a prospectus,
at a
time when the prospectus then in effect may no longer be used under the Act,
prepare promptly upon request such amendment or amendments to the Registration
Statement and such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10 of the Act subject to clause
(i)
below; (f) not file any amendment or supplement to the Registration Statement
or
prospectus to which any Investor shall reasonably object after having been
furnished a copy at a reasonable time prior to the filing thereof; (g) advise
the Investors promptly after it shall receive notice or obtain knowledge thereof
of the issuance of any stop order by the Commission suspending the effectiveness
of the Registration Statement or the initiation or threatening of any proceeding
for that purpose and promptly use its best efforts to prevent the issuance
of
any stop order or to obtain its withdrawal if such stop order should be issued;
(h) furnish to the Investors as soon as available copies of the Registration
Statement and each preliminary or final prospectus, or supplement required
to be
prepared, pursuant to Section 4 or this Section 7, all in such quantities as
the
Investors may from time to time reasonably request; (i) keep the Registration
Statement effective for a period of two years from the Closing Date plus a
number of days equal to the number of days, if any, during which the Investors’
right to offer and sell such Registrable Securities shall have been suspended
pursuant to the provisions of Section 4 hereof (which number of days shall
in no
event exceed 60 days during any period of 12 months), or until the intended
distribution of Registrable Securities is completed by all Investors, whichever
occurs first; and the Company may after such period deregister any of the
Registrable Securities remaining unsold if the Company elects to do so or if
the
Commission or its staff so requests; and (j) if any of the Company’s shares of
common stock are then listed on any securities exchange(s) or Nasdaq, the
Company will cause all shares covered by the Registration Statement to be listed
on such exchange(s) or Nasdaq, as the case may be. By 9:30 am Eastern Time
on
the business day following the Effective Date (as defined in the Securities
Purchase Agreement), the Company shall file with the Commission in accordance
with Rule 424 under the Act the final prospectus to be used in connection with
sales pursuant to such Registration Statement. The Company shall promptly
furnish to each Investor that so requests in writing and its legal counsel,
without charge, copies of any correspondence from the SEC or the staff of the
SEC to the Company or its representatives relating to the Registration
Statement, the prospectus contained therein or any amendment or supplement
to
either of them.
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8. Registration
Default.
The
Company agrees that (i) if the Registration Statement has not been filed within
30 days after the date of this Agreement, (ii) if the Registration Statement
has
not been amended to address comments of the staff of the SEC that require an
amendment or a request of the SEC or such staff for an amendment, within 30
days
following the Company’s receipt of any such comments or request (subtracting
from such number of days any number of days, but not exceeding 30 days, during
which the Company has failed to use reasonable efforts to prepare and file
such
amendment; and adding to such number of days any delay exceeding 10 days caused
by the Investors in submitting, following written request therefor made by
the
Company, any information required from them to prepare such amendment), (iii)
if
the Registration Statement has not, in the event of a “no review” or “limited
review” of the Registration Statement by the SEC, been declared effective by the
SEC within 60 days after the date of this Agreement, (iv) if the Registration
Statement has not, in any event, been declared effective by the SEC within
120
days after the Closing Date, (v) if the Company fails to file with the SEC
a
request for acceleration in accordance with Rule 461 under the Securities Act
within five business days of the date the Company is first notified (orally
or
in writing, whichever is earlier) by the Commission that the Registration
Statement will not be reviewed or that it is not subject to any further review,
or (vi) if (1) the Company suspends sales or dispositions and offers therefor
of
the Registrable Securities in accordance with Section 4 or (2) on any day after
the date the Registration Statement is initially declared effective by the
SEC
sales of all the Registrable Securities required to be included in such
Registration Statement cannot be made pursuant to such Registration Statement
including, without limitation, because of a failure to keep such Registration
Statement effective, to disclose such information as is necessary for sales
to
be made pursuant to such Registration Statement, to register sufficient shares
of Common Stock or to list or maintain the listing of the Common Stock
(including the Registrable Securities), in each case described in clause (1)
or
clause (2) immediately above, for more than an aggregate of 60 days during
any
period of 12 months (each such event referred to in clause (i), (ii), (iii),
(iv), (v) or (vi), a “Registration Default”), then the Company will pay to each
Investor, as liquidated damages and not as a penalty, in cash, an amount equal
to one percent (1%) of the aggregate amount invested by such Investor under
the
Securities Purchase Agreement for each 30-day period, or portion thereof, that
a
Registration Default exists under clause (i), (ii), (iii) , (iv), (v) or (vi),
above, but liquidated damages shall not be duplicated on account of multiple
Registration Defaults existing simultaneously and shall not exceed an aggregate
of 10%. Accordingly, if two or more Registration Defaults exist simultaneously,
there shall nevertheless be only one accrual of liquidated damages during the
period of such simultaneous Registration Defaults. Such payments of liquidated
damages shall be made on the first day of each calendar quarter with respect
to
penalties accrued during the preceding calendar quarter. If the Company fails
to
make any such payments on the dates set forth above, such payments shall bear
interest at the rate of 10% per annum until paid in full.
4
Subject
to the Investor’s right to specific performance, but otherwise notwithstanding
anything to the contrary in this Agreement or the Securities Purchase Agreement,
the Company’s payment of liquidated damages as provided in this Section 8 shall
be the Investor’s sole and exclusive remedy in the event of any Registration
Default; provided, however, that if the foregoing remedy is deemed unenforceable
by a court of competent jurisdiction, or if the Registration Default is caused
by the bad faith or willful misconduct of the Company in complying with its
obligations under this Agreement, then the Investor shall have all other
remedies available at law or in equity.
9. Indemnification
by Company.
The
Company will, to the maximum extent permitted by law, indemnify and hold
harmless the Investors, the directors, officers, partners, members, employees,
agents, representatives of, and each Person (as defined in the Securities
Purchase Agreement), if any, who controls an Investor within the meaning of
the
Act, against any losses, claims, damages, or liabilities, joint or several,
to
which such Investor or such other Person may become subject, under the Act
or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) are caused by any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any prospectus
relating thereto, or any amendment or supplement thereof, or arising out of
or
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 or a violation or alleged violation by the Company of: (i) the
Securities Act, (ii) the Exchange Act (as defined in the Securities Purchase
Agreement), (iii) any other law relating to the offer or sale of the Registrable
Securities pursuant to the Registration Statement (including, without
limitation, any state securities law or any rule or regulation thereunder),
(iv)
any prospectus relating thereto, or (v) any amendment or supplement thereof;
and
will reimburse such Investor and each such other Person for any legal or other
expenses incurred by such Investor or such other Person in connection with
investigating or defending against any such loss, claim, damage, liability
or
action; provided, however, that the Company will not be liable in any such
case
to an Investor or such other Person to the extent that any such loss, claim,
damage, expense or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
reliance upon and in conformity with information that has been furnished in
writing by such Investor in accordance with Section 6 expressly for use in
connection with the preparation of the Registration Statement; provided further,
that the Company shall not be required to provide such indemnification to such
Investor or such other Person if such loss, claim, damage or liability (or
action in respect thereof) arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus and if, in respect to such statement, alleged statement, omission
or
alleged omission, the final prospectus corrected such statement, alleged
statement, omission or alleged omission and a copy of such final prospectus
had
not been sent or given by such Investor or such other Person (but only if they
were required to do so under applicable law) at or prior to the confirmation
of
the sale by such Investor or such other Person with respect to which such loss,
claim, damage, expense or liability relates. The Company shall reimburse each
Investor and each such other Persons, promptly as such expenses are incurred
and
are due and payable, for any legal fees or other reasonable expenses incurred
by
them in connection with investigating or defending any such loss, claim, damage,
expense or liability.
5
10. Indemnification
by Investors.
Each
Investor shall (severally and not jointly), to the maximum extent permitted
by
law, indemnify and hold harmless the Company, each of its directors, each of
its
officers who has signed the Registration Statement, and each employee, agent,
representative of and each Person, if any, who controls the Company, within
the
meaning of the Act, against any loss, claim, damage or liability of which the
Company, or any such director, officer or other Person may be or become subject
under the Act or otherwise, insofar as such loss, claim, damage or liability
(or
action in respect thereof) is caused by any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, such prospectus,
or amendment or supplement thereof, or arises out of or is based upon the
omission or the alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading;
in
each case to the extent, but only to the extent, that such untrue statement
or
alleged untrue statement or omission or alleged omission relates to the
information that has been furnished in writing by such Investor in accordance
with Section 6 expressly for use in connection with the preparation of the
Registration Statement; provided, however, that the indemnity agreement
contained in this Section 10 and the agreement with respect to contribution
contained in Section 12 shall not apply to amounts paid in settlement of any
such loss, claim, damage, expense or liability if such settlement is effected
without the prior written consent of such Investor, which consent shall not
be
unreasonably withheld or delayed.
11. Notice
to Indemnitor.
Promptly after receipt by an indemnified party of notice of the commencement
of
any action, claim or proceeding, such indemnified party will, if a claim thereof
is to be made against the indemnifying party pursuant hereto, notify the
indemnifying party in writing of the commencement thereof, but the omission
to
notify the indemnifying party will not relieve it from any liability which
it
may have to any indemnified party except to any extent to which the indemnifying
party is actually prejudiced thereby. In case such action, claim or proceeding
is brought against any indemnified party, and it notifies the indemnifying
party
in writing of the commencement thereof, the indemnifying party will be entitled
to participate in, and, to the extent that it may wish, jointly with any other
indemnifying party, similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that an indemnified party shall have the right to retain its own counsel with
the fees and expenses of such counsel for such indemnified party to be paid
by
the indemnifying party, if (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) the indemnifying party
has
failed after a reasonable period of time to assume such defense and to employ
counsel reasonably satisfactory to such indemnified party or (iii) in the
reasonable opinion of the indemnified party the representation by counsel of
the
indemnified party and 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 proceeding. The indemnified
party shall cooperate fully with the indemnifying party in connection with
any
negotiation or defense of any such action, claim or proceeding by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the indemnified party which relates to such action,
claim or proceeding. The indemnifying party shall keep the indemnified party
fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable for
any
settlement of any action, claim or proceeding effected without its prior written
consent, provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without
the prior written consent of the indemnified party, consent to entry of any
judgment or enter into any settlement or other compromise 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 to such action,
claim or proceeding.
6
12. Contribution.
If the
indemnification provided for in Section 9 or Section 10 is unavailable to an
indemnified party thereunder in respect to any losses, claims, damages,
liabilities or expenses referred to therein, then an 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, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and the Investor(s), on the
other hand, in connection with the statements or omissions that resulted in
such
losses, claims, damages, liabilities or expenses. The relative fault of the
Company and the Investor(s) in connection with the statements that resulted
in
such losses, claims, damages, liabilities or expenses shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of material facts or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Investor(s) and the
parties’ relative intent, knowledge, access to information and opportunity to
correct such statement or omission; provided, however, that no Person involved
in the sale of Registrable Securities who is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) in
connection with such sale shall be entitled to contribution from any Person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation.
13. Indemnification
Limitation and Continuation.
Notwithstanding any other provision of this Agreement, the liability of any
Investor for indemnification or contribution under this Agreement shall not
exceed an amount equal to the number of shares of Registrable Securities sold
by
such Investor under the Registration Statement multiplied by the net amount
per
share received in such sale(s). The indemnification and contribution provided
for under this Agreement shall remain in full force and effect regardless of
any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling person of such indemnified party and shall survive
the
transfer of securities.
7
14. Notices.
All
notices required or permitted to be given pursuant to this Agreement shall
be in
writing and shall be deemed given when received when delivered personally or,
by
facsimile, by overnight courier or by first class mail, postage prepaid,
registered or certified with return receipt request, at the addresses set forth
on the signature page or at such other address as any party shall designate
in
writing to the other.
15. Governing
Law; Counterparts.
This
Agreement shall in all respects be governed by and construed and enforced in
accordance with the laws of the State of New York. It may be executed in any
number of counterparts.
16. Assignment.
At any
time the Registration Statement is not available, the rights under this
Agreement shall be automatically assignable by each Investor to any transferee
of all or any portion of such Investor’s Registrable Securities if such
Investor’s rights in the Registrable Securities can otherwise be transferred in
accordance with Section 4.1(a) of the Securities Purchase Agreement and all
applicable securities laws, and if: (i) such Investor agrees in writing with
the
transferee or assignee to assign such rights, and the transferee or assignee
agrees to be bound by all provisions of this Agreement and the Securities
Purchase Agreement, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (ii) the Company is, within
five
business days after such transfer or assignment, furnished with written notice
of (a) the name and address of such transferee or assignee, and (b) the
securities with respect to which such registration rights are being transferred
or assigned; (iii) as a part of such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted
under
the Securities Act and applicable state securities laws; and (iv) such transfer
shall have been made in accordance with the applicable requirements of the
Securities Purchase Agreement.
17. Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each Investor
or, in the case of a waiver, by the party against whom enforcement of any such
waiver is sought. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.
[signature
pages follow]
8
Company
Signature Page to
Triangle
Petroleum Corporation
Dated
_____________, 2007
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
above set forth.
“COMPANY”
TRIANGLE
PETROLEUM
CORPORATION
By: _________________________________
Name: ________________________
Title:
________________________
Address
for Notice:
Triangle
Petroleum Corporation
000-0
XX,
Xxxxx 0000
Xxxxxxx,
Xxxxxxx
Xxxxxx
X0X 0X0
Attention:
Xx. Xxxx X. Xxxxxxxxx
President,
CEO, & Chairman
Fax:
(000) 000-0000
With
a
copy to (which shall not constitute notice):
Sichenzia
Xxxx
Xxxxxxxx
Xxxxxxx
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Mr. Xxxxxx Xxxx
Fax:
(000) 000-0000
9
Investor
Counterpart Signature Page to
TRIANGLE
PETROLEUM CORPORATION
Dated
_____________, 2007
“INVESTOR”
Date
of
Securities Purchase Agreement,
_________________,
2007
By: __________
Name: ___________________________
Title:
___________________________
Number
of
Shares: ___________ Address:
10
