EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into effective
as of November 15, 2006. On the Closing Date, the Company will issue Units to
the Subscribers upon the terms set forth in the Subscription Agreement. As an
inducement to the Subscribers to enter into the Subscription Agreement, the
Company agrees with each Subscriber, and with D & D, Octagon, ECS, and the
holders of the Lender Warrants as follows:
1. Definitions. As used in this Agreement (including the preamble
above), the following defined terms shall have the following meanings:
"AFFILIATE" of any specified person means any other person, which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in Los Angeles,
California are authorized or obligated by law or executive order to close.
"CLOSING" has the meaning set forth in the Subscription Agreement.
"CLOSING DATE" has the meaning set forth in the Subscription Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"COMMON STOCK" means the Company's common stock, par value $0.0001 per
share; and (ii) any other securities into which or for which any of the
securities described in the preceding clause (i) may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
"COMPANY" means Pacific Energy Resources Ltd., a Delaware corporation.
"D & D" means D & D Securities Company.
"D & D WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the placement agent's warrant to be issued to D & D on the Closing
Date.
"ECS" means Energy Capital Solutions, LLC.
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"ECS WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the placement agent's warrant to be issued to ECS on the Closing
Date.
"EFFECTIVENESS DEADLINE DATE" means the 180th trading day following the
Closing Date; provided, that, if the Commission reviews and has comments on the
filed Registration Statement that would require the filing of a pre-effective
amendment thereto with the Commission, then the Effectiveness Deadline Date
shall be the 210th trading day following the Closing Date.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in SECTION
2(b).
"EFFECTIVE TIME" means the date and time on which the Commission
declares the Registration Statement effective or on which the Registration
Statement otherwise becomes effective.
"ELECTING HOLDER" has the meaning assigned thereto in SECTION 3(a).
"ENDING DATE" has the meaning assigned thereto in SECTION 2(c).
"EVENT" has the meaning assigned thereto in SECTION 2(c).
"EVENT DATE" has the meaning assigned thereto in SECTION 2(c).
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"FILING DEADLINE DATE" means the 120th trading day following the
Closing Date.
"HOLDER" means, when used with respect to any Security, the record
holder of such Security.
"LENDER WARRANT SHARES" means the shares of Common Stock issuable to
upon exercise of the lender warrants to be issued to various lenders or their
affiliates on the Closing Date ("LENDER WARRANTS") pursuant to the terms of the
Credit Agreement among X. Xxxx and Company, the Company and certain of its
subsidiaries.
"OCTAGON" means Octagon Capital Corporation.
"OCTAGON WARRANT SHARES" means the shares of Common Stock issuable upon
exercise of the placement agent's warrant to be issued to Octagon on the Closing
Date.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
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"PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A or Rule 430B under the
Securities Act) included in the Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"QUESTIONNAIRE" means a Selling Security Holder Questionnaire,
substantially in the form of EXHIBIT A attached hereto, relating to the
Securities.
"REGISTRABLE SECURITIES" means 110% of the shares of Common Stock
issued to Subscribers on the Closing Date, 110% of the Underlying Warrant
Shares, 100% of the D & D Warrant Shares, 100% of the Octagon Warrant Shares,
100% of the ECS Warrant Shares, 100% of the Lender Warrant Shares, and any
securities issued with respect to any of the foregoing as a stock dividend or in
connection with a stock split or recapitalization occurring prior to the filing
of the Registration Statement, or, if occurring following the filing of the
Registration Statement, as contemplated by Rule 416 of the Securities Act;
provided, however, that any such securities shall cease to be Registrable
Securities when they are no longer Restricted Securities.
"REGISTRATION" means a registration effected pursuant to SECTION 2.
"REGISTRATION STATEMENT" means a registration statement filed under the
Securities Act providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, all of the Registrable Securities pursuant
to Rule 415 under the Securities Act and/or any similar rule that may be adopted
by the Commission, filed by the Company pursuant to the provisions of SECTION 2,
including the Prospectus contained therein, any amendments and supplements to
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
"RESTRICTED SECURITIES" means any Securities except any such Securities
that (i) have been registered pursuant to an effective registration statement
under the Securities Act and sold in a manner contemplated by the Registration
Statement, (ii) have been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto) or are transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto), or (iii)
have otherwise been transferred and new Securities not subject to transfer
restrictions under the Securities Act have been delivered by or on behalf of the
Company.
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"RULES AND REGULATIONS" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SECURITIES" means the shares of Common Stock issued pursuant to the
Subscription Agreement and the shares of Common Stock issued or issuable upon
exercise of Warrants.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SUBSCRIBERS" means the Subscribers named on the signature pages of the
Subscription Agreement and this Agreement.
"SUBSCRIPTION AGREEMENT" means the Pacific Energy Resources Ltd.
Subscription Agreement by and among the Company and the Subscribers.
"TRADING DAY" means a day on which the Common Stock trades on the
Toronto Stock Exchange or, if the Common Stock does not so trade on the day in
question, then trading day shall mean Business Day.
"UNDERLYING WARRANT SHARES" means shares of Common Stock issued or
issuable under Warrants issued by the Company to Subscribers on the Closing
Date.
"UNITS" means one share of Common Stock and one-half of one Warrant.
"WARRANTS" means Common Stock purchase warrants comprising part of the
Units issued pursuant to the Subscription Agreement, with each whole Warrant
being exercisable into one share of Common Stock.
2. REGISTRATION.
(a) The Company shall (i) file with the Commission on or prior to the
Filing Deadline Date a Registration Statement covering the offer and sale of the
Registrable Securities, and (ii) use its reasonable best efforts to cause such
Registration Statement to be declared effective under the Securities Act on or
prior to the Effectiveness Deadline Date. The Registration Statement shall be on
Form S-1 or Form SB-2 (except if the Company is not then eligible to register
for resale the Registrable Securities on Form S-1 or Form SB-2, in which case
such registration shall be on another appropriate form for such purpose) and
shall contain (except if otherwise requested or required pursuant to comments
received from the Commission or other governmental or regulatory authority upon
a review of such Registration Statement) a "Plan of Distribution" substantially
in the form attached hereto as ANNEX A.
(b) The Company shall use its reasonable best efforts to prepare and
file with the Commission such amendments and supplements to the Registration
Statement and Prospectus used in connection therewith and take all such other
actions to keep the Registration Statement continuously effective in order to
permit the Prospectus to be usable by holders for resales of Registrable
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Securities from the Effective Time until the earliest to occur of (A) the date
which is 24 months after the Closing Date, (B) the date upon which all
Registrable Securities registered under the Registration Statement have been
sold thereunder, and (C) the date upon which all of the Securities cease to be
Restricted Securities (such period being referred to herein as the
"EFFECTIVENESS PERIOD").
(c) If (i) such Registration Statement covering the Registrable
Securities is not filed with the Commission on or prior to the Filing Deadline
Date, (ii) such Registration Statement covering the Registrable Securities is
filed with but is not declared effective by the Commission on or prior to the
Effectiveness Deadline Date or (iii) after the Effective Time, such Registration
Statement ceases for any reason to be effective or any Prospectus thereunder
ceases to be usable with respect to any Registrable Securities it is required to
cover at any time prior to the expiration of the Effectiveness Period for more
than an aggregate of 45 trading days (which need not be consecutive), excluding
(x) grace periods of not more than 15 trading days each during which a
post-effective amendment is to be filed to include in the Registration Statement
material information previously not included in the Registration Statement, or
to correct a misstatement of a material fact set forth in the Registration
Statement, in each case due to facts or circumstances previously unknown to the
Company and arising subsequent to the effectiveness of the Registration
Statement or any post-effective amendment thereto, or to otherwise provide
information necessary to comply with Section 10(a)(3) of the Securities Act
regarding the age of financial statements included therein, provided that the
Company diligently works to have any such post-effective amendment prepared,
filed and declared effective by the Commission as soon as practicable and (y)
grace periods of not more than five trading days each for the preparation and
filing with the Commission of any prospectus supplement (any such failure or
breach described in clauses (i), (ii) or (iii) above being referred to as an
"EVENT," and for purposes of clauses (i) or (ii) the date on which such Event
occurs, or for purposes of clause (iii) the date which such 45 trading
day-period is exceeded, being referred to as "EVENT DATE"), then following each
such Event Date, the Company shall become obligated to pay to each Electing
Holder, as liquidated damages and not as a penalty, a number of shares of Common
Stock equal to 1.0% of the number of shares of Common Stock that were issued to
such Electing Holder on the Closing Date and are still owned by such Electing
Holder on an Ending Date, for each 30-day period (pro rated on a daily pro-rata
basis for periods shorter than 30 days) elapsed between the Event Date and the
earlier of: (A) the date that the applicable Event is cured and (B) the date
that the Effectiveness Period expires. No such payments shall be payable in
respect of any Underlying Warrant Shares or securities that are not Registrable
Securities. Liquidated damages payments payable by the Company under this
SECTION 2(c) shall be issued by the Company to each Electing Holder not later
than seven Business Days following the end of each 30-day period or portion
thereof prior to the cure of an Event (each such end date being an "ENDING
DATE"). Notwithstanding anything to the contrary contained herein or in the
Subscription Agreement or any related document or agreement, the aggregate
number of shares of Common Stock issued or issuable to any holder as liquidated
damages under this SECTION 2(c) shall not exceed 10% of the aggregate number of
shares of Common Stock issued to such holder on the Closing Date pursuant to the
Subscription Agreement.
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3. REGISTRATION PROCEDURES. In connection with the Registration
Statement, the following provisions shall apply:
(a) No holder shall be entitled to be named as a selling security
holder in the Registration Statement as of the Effective Time, and no holder
shall be entitled to use the Prospectus for resales of Registrable Securities at
any time, unless such holder has returned a completed and signed Questionnaire
to the Company by the deadline for response set forth therein; provided,
however, holders of Registrable Securities shall have at least ten calendar days
from the date on which the Questionnaire is first sent to such holders to return
a completed and signed Questionnaire to the Company. The term "ELECTING HOLDER"
means any holder of Registrable Securities that has returned a completed and
signed Questionnaire to the Company in accordance with this SECTION 3(a). The
information provided by each Electing Holder in the signed Questionnaire shall
be for use in the Registration Statement.
(b) The Company shall furnish to each Electing Holder prior to the
initial filing of the Registration Statement, a draft of such Registration
Statement, and shall furnish to such holders prior to the filing of any
amendment or supplement to the Prospectus that contains material revisions to
the selling security holder information, a draft of such amendment or supplement
and shall reflect in each such document when so filed with the Commission such
comments as such holders reasonably may propose with regard to the selling
security holder information; provided, however, that the Company shall make the
final decision as to the form and content of each such document.
(c) Each Electing Holder shall promptly advise the Company in writing
if changes in the Registration Statement or the Prospectus are required in order
that disclosures made in the Registration Statement and Prospectus based upon
information previously provided by the Electing Holder for use in the
Registration Statement and the Prospectus do not contain an untrue statement of
a material fact and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they are made) not
misleading. The Company shall promptly advise each Electing Holder in writing
(which notice pursuant to clauses (iii) through (v) hereof shall be accompanied
by an instruction to suspend the use of the Prospectus until the requisite
changes have been made):
(i) when the Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) when the Commission notifies the Company whether there will be a
"review" of the Registration Statement and whenever the Commission comments in
writing on the selling security holder information or Plan of Distribution in
the Registration Statement (the Company shall provide true and complete copies
thereof and all written responses thereto to each of the Electing Holders that
pertain to such holders as a selling security holder or to the Plan of
Distribution, but not information which the Company believes would constitute
material and non-public information);
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(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for such purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included in the
Registration Statement for sale in any jurisdiction or the initiation of any
proceeding for such purpose (including, but not limited to, an order issued by
any state securities commission or other regulatory authority suspending the
qualification, or exemption from qualification, of the sale of the Registrable
Securities under state securities laws); and
(v) if changes in the Registration Statement or the Prospectus are
required in order that the Registration Statement and Prospectus do not contain
an untrue statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading.
(d) The Company shall promptly furnish to each requesting Electing
Holder, without charge, at least one copy of the Registration Statement and all
post-effective amendments thereto, including financial statements and schedules,
and, if such holder so requests in writing, all reports, other documents and
exhibits that are filed with or incorporated by reference in the Registration
Statement.
(e) The Company shall, during the Effectiveness Period, promptly
deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Electing Holder may reasonably request; and the
Company consents (except during the continuance of any event described in
clauses (iii) through (v) of SECTION 3(c) or any pending corporate development
described in SECTION 3(h)) to the use of the Prospectus and any amendment or
supplement thereto by each of the Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the Prospectus and
any amendment or supplement thereto during the Effectiveness Period.
(f) Prior to any offering of Registrable Securities pursuant to the
Registration Statement, the Company shall, unless appropriate exemptions are
available, use its reasonable best efforts to (i) register or qualify the
registration or qualification of such Registrable Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions within the United
States as any Electing Holder may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long
during the Effectiveness Period as may be necessary to enable any Electing
Holder to complete its distribution of Registrable Securities pursuant to the
Registration Statement, and (iii) take any and all other actions necessary or
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advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the Company be obligated
to (A) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
SECTION 3(f), or (B) file any general consent to service of process in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Electing Holders to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to the Registration Statement, which certificates
shall meet the requirements of any securities exchange on which the Company's
Common Stock is then listed and which certificates shall be in such permitted
denominations as Electing Holders may request in connection with the sale of
Registrable Securities pursuant to the Registration Statement.
(h) Upon the occurrence of any fact or event contemplated by clauses
(iii) through (v) of SECTION 3(c), the Company shall (subject to the next
sentence) promptly prepare a post-effective amendment or supplement to the
Registration Statement or the Prospectus, or any document incorporated therein
by reference, or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included therein, the
Registration Statement or Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and shall comply with the Securities Act, state securities
laws and any other applicable laws. If the Company notifies the Electing Holders
in accordance with clauses (iii) through (v) of SECTION 3(c) to suspend the use
of the Prospectus until the requisite changes to the Prospectus have been made,
then each Electing Holder shall suspend the use of the Prospectus until (i) such
Electing Holder has received copies of the supplemented or amended Prospectus
contemplated by the preceding sentence, or (ii) such Electing Holder is advised
in writing by the Company that the use of the Prospectus may be resumed and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. Notwithstanding the foregoing, the Company shall
not be required to amend or supplement the Registration Statement, any related
Prospectus or any document incorporated by reference therein for a period not to
exceed 30 consecutive days (or 60 days in the aggregate in any calendar year) if
there occurs or exists any pending corporate development the disclosure of which
would, in the good faith judgment of the Board of Directors of the Company, be
harmful to the business, operations, prospects, or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole.
(i) The Company shall cause all Registrable Securities registered
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(j) The Company shall provide transfer agent and registrar for all
Registrable Securities registered pursuant to the Registration Statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration.
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(k) The Company shall use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission.
(l) The Company shall use commercially reasonable efforts to enable the
holders of the Registrable Securities to sell the Registrable Securities under
Rule 144 of the Securities Act.
(m) The Company shall advise each Electing Holder when such Electing
Holder provides information to the Company under this Section 3 that such
Electing Holder must provide the information in a written statement signed by or
on behalf of such Electing Holder that expressly states that such information is
for use in the subject Registration Statement, Prospectus or amendment or
supplement thereto. The Company reserves the right not to rely on information
provided by an Electing Holder if such information is not contained in a written
statement meeting the foregoing requirements.
4. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective
and whether or not any securities are issued or sold pursuant to any
Registration Statement. Notwithstanding the foregoing or anything in this
Agreement to the contrary, each holder of the Registrable Securities being
registered shall pay all commissions and underwriting discounts with respect to
any Registrable Securities sold by it and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly).
5. Indemnification and Contribution.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of the
Registrable Securities pursuant to SECTION 2, the Company shall indemnify and
hold harmless each Electing Holder and its affiliates and each underwriter,
selling agent or other securities professional, if any, which facilitates the
disposition of Registrable Securities, and each of their respective officers and
directors and each person who controls such Electing Holder, underwriter,
selling agent or other securities professional within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (each such person being
sometimes referred to as an "Indemnified Person") against any losses, claims,
damages, liabilities or expenses, joint or several, to which such Indemnified
Person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon an untrue statement of a material fact contained
in any Registration Statement or any Prospectus contained therein or furnished
by the Company to any Indemnified Person, or any amendment or supplement
thereto, or arise out of or are based upon the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading
or any violation by the Company of any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities laws applicable to the
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Company in connection with the registration hereunder, and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage, liability or expense arises out of
or is based upon an untrue statement or omission made in such Registration
Statement or Prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by an
instrument duly executed by or on behalf of such Indemnified Person expressly
for use therein; provided, further, however, that the foregoing indemnity
agreement with respect to any Prospectus shall not inure to the benefit of any
Indemnified Person who failed to deliver a final Prospectus or an amendment or
supplement thereto (provided by the Company to the several Indemnified Persons
in the requisite quantity and on a timely basis to permit proper delivery on or
prior to the relevant transaction date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue statement of
a material fact contained in any Prospectus, or caused by any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, if such material misstatement or omission was cured in such
final Prospectus or amendment or supplement thereto. For the purposes of this
subsection (a), the Company may rely on written information furnished to the
Company by an Indemnified Person via electronic mail if such electronic mail is
followed within five (5) days thereof by a written instrument meeting the
requirements set forth in the foregoing sentence.
(b) INDEMNIFICATION BY THE HOLDERS. Each Electing Holder agrees, as a
consequence of the inclusion of any of such holder's Registrable Securities in
any Registration Statement, severally and not jointly, to (i) indemnify and hold
harmless the Company, its directors, its officers who sign such Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which the Company or such
other persons may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement of a material fact contained
in such Registration Statement or Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the 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 omission was made in reliance upon and in conformity
with written information furnished to the Company by an instrument duly executed
by or on behalf of such holder and stated to be expressly for use therein and
(ii) reimburse the Company and its directors and its officers who sign such
Registration Statement for any legal or other
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expenses reasonably incurred by the Company and such directors and officers in
connection with investigating or defending any such action or claim as such
expenses are incurred. For the purposes of this subsection (b), the Company may
rely on written information furnished to the Company by an Indemnified Person
via electronic mail if such electronic mail is followed within five (5) days
thereof by a written instrument meeting the requirements set forth in the
foregoing sentence. The liability of each Electing Holder shall be in proportion
to and limited to the net amount received by such Electing Holder from the sale
of Registrable Securities pursuant to such Registration Statement.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under this SECTION 5 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this SECTION
5, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in and to
assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the reasonably incurred fees and expenses of one such counsel
for all indemnified parties to be reimbursed by the indemnifying party if
representation of any such indemnified party by the counsel retained by the
indemnifying party would be inappropriate under applicable standards of
professional conduct due to actual or potential conflicting interests between
such indemnified party and any other party represented by such counsel in such
proceeding. Except as specified in the immediately preceding sentence, after
notice from an indemnifying party to an indemnified party of such indemnifying
party's election to assume the defense pursuant to the immediately preceding
sentence, such indemnifying party shall not be liable to the indemnified party
under this SECTION 5 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relieve such indemnifying party of liability to the indemnified party under this
SECTION 5 with respect to such action, except to the extent the indemnifying
party is materially prejudiced as a result of not receiving such notice, and
shall not relieve it of any liability that it may have to any indemnified party
otherwise than under this SECTION 5 or with respect to any other action except
to the extent the indemnifying party is materially prejudiced as a result of not
receiving such notice. No indemnifying party shall, without the written consent
of the indemnified party, which consent will not be unreasonably withheld,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
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(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) of this SECTION 5 in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue statement of a material fact or omission to state a material
fact relates to information about such indemnifying party or indemnified party
supplied by such indemnifying party or by such indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this SECTION 5(d)
were determined by PRO RATA allocation (even if the Electing Holders or any
underwriters, selling agents or other securities professionals or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this SECTION 5(d). In no event shall the liability of any Electing Holder
be greater in amount than the amount of net proceeds received by such Electing
Holder upon such sale or the amount for which such indemnifying party would have
been obligated to pay by way of indemnification if the indemnification provided
for under this SECTION 5 had been available under the circumstances. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this SECTION 5(d) to
contribute shall be several in proportion to the percentage of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
(e) The obligations of the Company under this SECTION 5 shall be in
addition to any liability that the Company may otherwise have to any Indemnified
Person and the obligations of any Indemnified Person under this SECTION 5 shall
be in addition to any liability that such Indemnified Person may otherwise have
to the Company. The remedies provided in this SECTION 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to an
indemnified party at law or in equity.
6. MISCELLANEOUS.
12
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Electing Holders holding not less than 50.1% of the
Registrable Securities then held by the Electing Holders at such time. In
addition, no amendment to this Agreement that adversely discriminates against an
Electing Holder shall be effective as to such Electing Holder without such
Electing Holder's written consent.
(b) NOTICES. All notices and other communications required or permitted
to be provided to a party hereunder shall be in writing and shall be deemed
given and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile (provided the sender receives
a machine-generated confirmation of successful transmission) or e-mail prior to
5:00 p.m. (Los Angeles, California time) on a trading day, (ii) the next trading
day after the date of transmission, if such notice or communication is delivered
via facsimile or e-mail on a day that is not a trading day or later than 4:59
p.m. (Los Angeles, California time) on any trading day, (iii) the trading day
following the date of mailing, if sent overnight by an overnight courier service
nationally recognized in the United States, or (iv) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices
and communications for a party shall be as set forth on the signature pages to
this Agreement or such other address as may be designated in writing hereafter,
in the same manner, by such party.
(c) PARTIES IN INTEREST. The parties to this Agreement intend that all
holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities that are included in a Registration Statement. All the
terms and provisions of this Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto and any holder from time to time of the Registrable
Securities to the aforesaid extent. If any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning, construction
or interpretation hereof.
13
(f) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to
provisions relating to conflicts of law to the extent the application of the
laws of another jurisdiction would be required thereby.
(g) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
(h) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
(i) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter hereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(j) TERMINATION ON FAILURE TO TIMELY FULFILL ESCROW RELEASE CONDITION.
This Agreement shall terminate and be of no further force or effect if the
Closing has not occurred by the close of business on the Closing Date.
(Remainder of page intentionally left blank)
14
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the Company has caused this Registration Rights
Agreement to be duly executed by its authorized signatory as of the date first
indicated above.
Very truly yours,
PACIFIC ENERGY RESOURCES LTD.
000 Xxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
By: ____________________________
Name: Xxxxxx Xxxxx
Title: President
With a copy to:
Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxx, Esq.
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Please confirm by signing in the space provided below that the foregoing
correctly sets forth the agreement between the Company and you.
Accepted and Agreed
_________________________________________________________________
Name (Print)
By: _____________________________________________
Name:
Title:
Date: _____________________________________________
Address: _____________________________________________
_____________________________________________
_____________________________________________
Telephone: _____________________________________________
Facsimile: _____________________________________________
E-mail: _____________________________________________
