REGISTRATION RIGHTS AGREEMENT
Exhibit 4.9
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of October __, 2010,
by and among (i) NYTEX Energy Holdings, Inc., Inc., a Delaware corporation (the “Company”),
(ii) each person listed on Exhibit A attached hereto, as may be amended from time to time
(each an “Investor” and, collectively, the “Investors”), and (iii) each person or
entity that subsequently becomes a party to this Agreement pursuant to, and in accordance with, the
provisions of Section 13 hereof (each an “Investor Permitted Transferee” and,
collectively, the “Investor Permitted Transferees”).
WHEREAS, the Company has agreed to issue and sell to the Investors (the “Offering”), and the
Investors have agreed to purchase from the Company, an aggregate of up to 45 units (each a
“Unit” and, collectively, the “Units”) for an aggregate purchase price of
$4,500,000 (the “Offering Amount”), subject to an over-allotment option of up to an
additional 5 Units ($500,000) (the “Over-allotment Amount”), priced at $100,000 per Unit, with each
Unit consisting of (i) 100,000 shares (each a “Unit Share” and, collectively, the “Unit
Shares”) of the Company’s Series A Convertible Preferred Stock, $0.001 par value per share (the
“Preferred Stock”), and (ii) warrants to purchase 30,000 Shares of Common Stock, $0.001 par
value per share (each a “Warrant” and, collectively, the “Warrants”), each of which
will entitle the holder to purchase one additional share of Common Stock (each a “Warrant
Share” and collectively, the “Warrant Shares”) as provided in the applicable
subscription agreement between the Company and each of the Investors (the “Subscription
Agreement”); and
WHEREAS, the Company has agreed to provide certain registration rights with respect to the
resale of the Registrable Securities (as defined herein), all on the terms and conditions provided
herein; and
WHEREAS, the terms of the Subscription Agreement provide that it shall be a condition
precedent to the closing of the transactions thereunder, for the Company and the Investors to
execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided therefore below
or elsewhere in this Agreement as described below:
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business.
“Closing” shall have the meaning ascribed to such term in the Subscription Agreement.
“Debenture Unit Holders” shall mean the holders and then permitted transferees of
Debenture Unit Registrable Securities.
“Debenture Unit Registrable Securities” shall mean a total of up to 1,333,333 shares
of Common Stock which the Company is required to register pursuant to the Registration Rights
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Agreement dated August 13, 2010 by and among the Company and the purchasers under that certain
Securities Purchase Agreement dated August 13, 2010 pursuant to which the Company sold units of
convertible debentures and common stock warrants.
“Effectiveness Date” means, (i) with respect to the Initial Registration Statement, as
soon as practicable, but no later than one hundred twenty (120) calendar days after the Final
Closing, and (ii) with respect to any additional Registration Statements which may be required to
be filed hereunder pursuant to Section 3(d) or otherwise, not later than ninety (90)
calendar days following the date on
which the additional Registration Statement is required to be filed hereunder if it is not
subject to a SEC review or if the additional Registration Statement is subject to a SEC review one
hundred twenty (120) calendar days after the date such Registration Statement is required to be
filed hereunder.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and all of
the rules and regulations promulgated thereunder.
“Family Member” means (a) with respect to any individual, such individual’s spouse,
any descendants (whether natural or adopted), any trust all of the beneficial interests of which
are owned by any of such individuals or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any
such individual, and any corporation, association, partnership or limited liability company all of
the equity interests of which are owned by those above described individuals, trusts or
organizations and (b) with respect to any trust, the owners of the beneficial interests of such
trust.
“Filing Date” shall mean, with respect to the Initial Registration Statement, within
sixty
(60) calendar days after the Final Closing, provided, however, that, if the Filing
Date falls on a Saturday, Sunday or other day, that the SEC is closed for business, the Filing Date
shall be extended to the next Business Day.
“Final Closing” shall mean the meaning ascribed to such term in the Confidential
Private Placement Memorandum.
“First Closing” shall have the meaning ascribed to such term in the Subscription
Agreement.
“Holder” means each Investor or any of such Investor’s respective successors and
Permitted Assignees who acquire rights in accordance with this Agreement with respect to any
Registrable Securities directly or indirectly from a Purchaser or from any Permitted Assignee.
“Initial Registration Statement” shall mean the initial Registration Statement filed
pursuant to this Agreement.
“Investor Permitted Transferees” as defined in the Preamble.
“Investors” shall mean, collectively, the Investors and the Investor Permitted
Transferees; provided, however, that the term “Investors” shall not include any of
the Investors or any of the Investor Permitted Transferees that do not own or hold any Registrable
Securities.
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“Permitted Assignee” means (a) with respect to a partnership, its partners or former
partners in accordance with their partnership interests, (b) with respect to a corporation, its
stockholders in accordance with their interest in the corporation, (c) with respect to a limited
liability company, its members or former members in accordance with their interest in the limited
liability company, (d) with respect to an individual party, any Family Member of such party, (e) an
entity that is controlled by, controls, or is under common control with a transferor, or (f) a
party to this Agreement.
“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or agency or subdivision thereof) or other entity of any kind.
“Registrable Securities” shall mean the Registrable Unit Shares and the Registrable
Warrant Shares.
“Registrable Unit Shares” shall mean the shares of Common Stock issuable upon
conversion of the Unit Shares.
“Registrable Warrant Shares” shall mean the shares of Common Stock issuable upon
exercise of the Warrants.
“Registration Statement” means any one or more registration statements filed (and/or
required to be filed pursuant hereto) with the SEC by the Company on Form S-3, or in the event the
Company is not eligible to use Form S-3, on Form S-1, for the purpose of registering the
Registrable Securities, including (in each case) the prospectus, amendments and supplements to such
registration statement or prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be incorporated by reference in
such registration statement. The term “Registration Statement” shall include, but not be limited
to, the Initial Registration Statement.
“Rule 144” shall mean Rule 144 promulgated by the SEC pursuant to the Securities Act
and any successor or substitute rule, law or provision.
“Rule 172” means Rule 172 promulgated by the SEC pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC having substantially the same purpose and effect as such Rule.
“Rule 415” means Rule 415 promulgated by the SEC pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC having substantially the same purpose and effect as such Rule.
“Rule 424” means Rule 424 promulgated by the SEC pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the SEC having substantially the same purpose and effect as such Rule.
“SEC” shall mean the United States Securities and Exchange Commission.
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“SEC Guidance” means (i) any publicly-available written guidance, or rule of general
applicability of the SEC staff, or (ii) oral or written comments, requirements or requests of the
SEC staff to the Company in connection with the review of a Registration Statement.
“Securities Act” shall mean the Securities Act of 1933, as amended, and all of the
rules and regulations promulgated thereunder.
“Trading Day” means (a) if the Common Stock is listed or quoted on the NASDAQ Market,
then any day during which securities are generally eligible for trading on the NASDAQ Market, or
(b) if the Common Stock is not then listed or quoted and traded on the NASDAQ Market, then any
Business Day.
“Unit Shares” as defined in the preamble.
“Warrant Shares” as defined in the preamble.
2. EFFECTIVENESS; This Agreement shall become effective and legally binding only if
the First Closing occurs.
3. MANDATORY REGISTRATION.
(a) The Company shall be required to file an Initial Registration Statement on or prior to the
Filing Date registering the Registrable Securities for resale by the Holders as selling
stockholders thereunder. On or prior to the Filing Date, the Company shall prepare and file with
the SEC an Initial Registration Statement for the purpose of registering under the Securities Act
the resale of all, or such portion as permitted by SEC Guidance (and the Company shall make a
commercially reasonable effort to
advocate with the SEC for the registration of all or the maximum number of the Registrable
Securities as permitted by SEC Guidance) of the Registrable Securities by, and for the account of,
the Holders as selling stockholders thereunder, that are not then registered on an effective
Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. No
other securities shall be included in the Initial Registration Statement that is filed except for
the Registrable Securities and the Debenture Registrable Securities. The Company shall cause a
Registration Statement to be declared effective by the SEC under the Securities Act as promptly as
practicable after the filing thereof, but in any event on or prior to the applicable Effectiveness
Date.
(b) The Company shall be required to keep a Registration Statement effective until such date
that is the earlier of (the “Effectiveness Period”) (i) the date as of which all of the
Holders as selling stockholders thereunder may sell all of the Registrable Securities registered
for resale thereon without restriction pursuant to Rule 144 or (ii) the date when all of the
Registrable Securities registered thereunder shall have been sold (such date is referred to herein
as the “Mandatory Registration Termination Date”). Thereafter, the Company shall be
entitled to withdraw such Registration Statement and the Holders shall have no further right to
offer or sell any of the Registrable Securities registered for resale thereon pursuant to the
respective Registration Statement (or any prospectus relating thereto).
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(c) Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a
limitation on the number of Registrable Securities and Debenture Unit Registrable Securities to be
registered in the Initial Registration Statement (and the Company has made a commercially
reasonable effort to advocate with the SEC for the registration of all or a greater number of such
registrable securities), the number of Registrable Securities and Debenture Unit Registrable
Securities to be registered on such Registration Statement will be reduced on a pro rata basis
among the Investors and the Debenture Unit Holders based on the total number of unregistered
Registrable Securities and Debenture Unit Registrable Securities held by the Holders and the
Debenture Unit Holders, respectively, on a fully diluted basis. With respect to such pro rata
reduction on Registrable Securities, the number of Registrable Securities to be registered on such
Registration Statement will first be reduced by the Registrable Securities represented by the
Registrable Warrant Shares (applied, in the case that some Registrable Warrant Shares may be
registered, to the Holders on a pro rata basis based on the total number of unregistered
Registrable Warrant Shares held by such Holders), and second by Registrable Securities represented
by Registrable Unit Shares (applied, in the case that some Registrable Unit Shares may be
registered, to the Holders on a pro rata basis based on the total number of unregistered Unit
Shares held by such Holders). The Company shall file a new registration statement as soon
as reasonably practicable covering the resale by the Holders and the Debenture Unit Holders of not
less than the number of such Registrable Securities and the Debenture Unit Registrable Securities,
respectively, that are not registered in the Initial Registration Statement. The Company shall not
be liable for liquidated damages under Section 5(a) as to any Registrable Securities which
are not permitted by the SEC to be included in a Registration Statement due solely to SEC Guidance
from time to time. In such case, any liquidated damages payable under Section 5(a) shall
be calculated to apply only the percentage of Registrable Securities which are permitted in
accordance with SEC Guidance to be included in such Registration Statement.
(d) If during the Effectiveness Period, subject to Section 3(a) and Section
3(c), the Company becomes aware that the number of Registrable Securities at any time exceeds
the number of Registrable Securities then registered for resale in a Registration Statement, then
the Company shall file as soon as reasonably practicable an additional Registration Statement
covering the resale by the Holders of not less than the number of such Registrable Securities that
are not then registered.
(e) Notwithstanding any other provision of this Agreement, if during the Effectiveness Period
any of the Registrable Securities become eligible for resale without restriction pursuant to Rule
144 (the “Rule 144 Eligible Securities”) then the number of Registrable Securities
outstanding at any one time shall be reduced by the number of Rule 144 Eligible Securities and the
Company may at its option file an amendment to any Registration Statement to reduce the number of
Registrable Securities accordingly. The Company acknowledges that the Company’s obligation to file
its periodic disclosure documents for the twelve (12) month period preceding the date of sale is a
“restriction” as that term is used in the first
sentence of this Section 3(e).
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4. PIGGYBACK REGISTRATION.
(a) If, at any time, commencing on the date of the First Closing, the Company proposes to
prepare and file with the SEC a registration statement under the Securities Act, the Company will
give written notice to each Holder of its intention to do so by certified mail and shall include
all of the Registrable Securities in such registration statement; provided,
however, that in connection with any offering involving an underwriting of shares of Common
Stock, the Company shall not be required to include the Registrable Securities of any Holder in
such registration statement unless they accept the terms of the underwriting as agreed upon between
the Company and its underwriters, and then only in such quantity as the underwriters determine in
their sole discretion will not jeopardize the success of the offering by the Company. In the event
that the underwriters determine that less than all of the Registrable Securities required to be
registered can be included in such offering, then the Registrable Securities that are included
shall be apportioned, among the Investors and the Debenture Unit Holders on a pro rata basis based
on the total number of unregistered Unit Shares and Debenture Unit Registrable Securities held by
such Investors and the Debenture Unit Holders and requested to be included in the Registration
Statement on a fully diluted basis. The Company shall use its best efforts to effect the
registration under the Securities Act of the Registrable Securities at the Company’s sole cost and
expense and at no cost or expense to the Holders (other than any commission, discounts or counsel
fees payable by the Holders, as further provided in Section 7 hereof).
(b) Notwithstanding the preceding provisions of this Section 4, the Company shall have
the right any time after it shall have given written notice pursuant to this Section 4
(irrespective of whether any written request for inclusion of such securities shall have
already been made) to elect not to file any proposed registration statement, or to withdraw the
same after the filing but prior to the effective date thereof.
(c) The Company shall use its commercially reasonable efforts to cause the registration
statement filed pursuant to this Section 4 to become effective as promptly as possible
under the circumstances at the time prevailing and, if any stop order shall be issued by the SEC in
connection therewith, to use its reasonable efforts to obtain the removal of such order.
(d) To the extent any Registrable Securities of the Holders are included in such registration
statement, the Company shall notify each Holder by facsimile or e-mail as promptly as practicable,
and in any event, within two (2) Trading Days, after such registration statement is declared
effective and shall simultaneously provide the Holders with a copy of any related prospectus to be
used in connection with the sale or other disposition of the Registrable Securities covered
thereby.
5. PENALTIES/SUSPENSION OF A REGISTRATION STATEMENT.
(a) If: (i) the Initial Registration Statement and any other Registration Statement is not
filed on or prior to the Filing Date, or (ii) the Company fails to file with the SEC a request for
acceleration in accordance with Rule 461 promulgated under the Securities Act, within five (5)
Trading Days of the date that the Company is notified (orally or in writing, whichever is earlier)
by the SEC that the Initial Registration Statement or any other Registration Statement will not be
“reviewed” or not be subject to further review, or (iii) prior to the
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Effectiveness Date of the Initial Registration Statement or any other Registration Statement,
the Company fails to file a pre-effective amendment and otherwise respond in writing to comments
made by the SEC in respect of such Initial Registration Statement or any other Registration
Statement within ten (10) Business Days after the receipt of comments by or notice from the SEC
that such amendment is required in order for such Initial Registration Statement or any other
Registration Statement to be declared effective, or (iv) subject to the tolling provisions
contained herein, as to, in the aggregate among all Investors on a pro rata basis based on the
amount of Registrable Securities held by each of them, respectively, the lesser of (A) all of the
Registrable Securities and (B) the maximum number of Registrable Securities permitted by SEC
Guidance (collectively, the “Initial Shares”), a Registration Statement registering for
resale all of the Initial Shares is not declared effective by the SEC by the Effectiveness Date, or
(v) after the Effectiveness Date of the Initial Registration Statement or any other Registration
Statement, subject to the tolling provisions contained herein, such Initial Registration
Statement or other Registration Statement ceases for any reason to remain continuously effective as
to all Registrable Securities included in such Initial Registration Statement or other Registration
Statement, as applicable, or the Investors are otherwise not permitted to utilize the Prospectus
therein to resell such Registrable Securities, for more than ten (10) consecutive Business Days or
more than an aggregate of twenty (20) Business Days during any twelve (12) month period (which need
not be consecutive Business Days), provided, however, that no payments provided
below shall be required in connection with a Suspension Period (as hereinafter defined) (any such
failure or breach being referred to as an “Event,” and for purposes of clause (i), (iv) or
(v) the date on which such Event occurs, or for purposes of clause (ii) the date on which such
five (5) Trading Day period is exceeded, or for purposes of clause (iii) the date which such ten
(10) Business Day period is exceeded, or for purposes of clause (v) the date on which such ten
(10) or twenty (20) Business Day period, as applicable, is exceeded being referred to as
“Event Date”), then, in addition to any other rights the Investors may have hereunder or
under applicable law, on each such Event Date and on each monthly anniversary of each such Event
Date (if the applicable Event shall not have been cured by such date) until the applicable Event is
cured, the Company shall, subject to Section 3(c), pay to each Investor on a monthly basis
within three (3) Business Days of the end of the month an amount in cash, as liquidated damages and
not as a penalty, equal to two percent (2.0%) of the aggregate purchase price paid by such Investor
pursuant to the Subscription Agreement for any Registrable Securities then held by such Investor
(as applicable under clause (iv)) that are not then eligible for resale pursuant to the Initial
Registration Statement or other Registration Statement. The parties agree that the maximum
aggregate liquidated damages payable to an Investor under this Agreement shall be twelve percent
(12%) of the aggregate amount paid by such Investor for its respective Registrable Securities
pursuant to the Subscription Agreement. If the Company fails to pay any liquidated damages pursuant
to this Section 5(a) in full within ten (10) calendar days after the date payable, the
Company will be required to pay such liquidation damages in cash only and shall pay interest
thereon at a rate of eighteen (18%) percent per annum (or such lesser maximum amount that is
required to be paid by applicable law) to the Investor, accruing daily from the date such partial
liquidated damages are due until such amounts, plus all such interest thereon, are paid in full;
provided, however, that if the tenth calendar day after the date payable is not a
Business Day then the payment shall be due on the next Business Day. The liquidated damages
pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior
to the cure of an Event.
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(b) The Company shall notify each Holder by facsimile or e-mail as promptly as practicable,
and in any event, within one (1) Trading Day, after a Registration Statement is declared effective
and shall simultaneously provide each Holder with an electronic copy of any related prospectus to
be used in connection with the sale or other disposition of the Registrable Securities covered
thereby. Failure to notify the Holders in accordance with this
Section 5(b) shall be deemed
an Event under Section 5(a).
(c) No Investor shall be entitled to a payment pursuant to this Section 5 if
effectiveness of a Registration Statement has been delayed or a prospectus has been unavailable as
a result of (i) a failure by such Investor to promptly provide on request by the Company the
information required under the Subscription Agreement or this Agreement or requested by the SEC as
a condition to effectiveness of a Registration Statement; (ii) the provision of inaccurate or
incomplete information by such Investor; or (iii) a statement or determination of the SEC that any
provision of the rights of the Investor under this Agreement are contrary to the provisions of the
Securities Act.
6. OBLIGATIONS OF THE COMPANY. In the event the Company files a Registration Statement
with the SEC in connection with Section 3 or Section 4 hereof that covers the
Registrable Securities and uses its commercially reasonable efforts to cause a Registration
Statement to become effective, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to a Registration Statement
and the prospectus used in connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable Securities covered by a
Registration
Statement;
(b) Furnish to the selling Holders such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities Act, and such other
documents (including, without limitation, prospectus amendments and supplements as are prepared by
the Company in accordance with Section 6(a) above) as the selling Holders may reasonably
request in order to facilitate the disposition of such selling Holders’ Registrable Securities;
(c) Use commercially reasonable efforts to comply with all applicable rules and regulations of
the SEC under the Securities Act and the Exchange Act, including, without limitation, Rule 172
under the Securities Act, file any final prospectus, including any supplement or amendment thereof,
with the SEC pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing
if, at any time during a period of effectiveness, the Company does not satisfy the conditions
specified in Rule 172 and, as a result thereof, the Holders are required to deliver a prospectus in
connection with any disposition of Registrable Securities; notify the selling Holders of the
happening of any event as a result of which the prospectus included in or relating to a
Registration Statement contains an untrue statement of a material fact or omits any fact necessary
to make the statements therein not misleading; and, thereafter, subject to Section 12
hereof, the Company will promptly prepare (and, when completed, give notice and provide a copy
thereof to each selling Holder) a supplement or amendment to such prospectus so that such
prospectus will not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading; provided, however, that
upon such
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notification by the Company (which shall be a Suspension pursuant to Section 12), the
selling Holders will not offer or sell Registrable Securities until the Company has notified the
selling Holders that it has prepared a supplement or amendment to such prospectus and filed it with
the SEC or, if the Company does not then meet the conditions for the use of Rule 172, delivered
copies of such supplement or amendment to the selling Holders (it being understood and agreed by
the Company that the foregoing proviso shall in no way diminish or otherwise impair the Company’s
obligation to promptly prepare a prospectus amendment or supplement as above provided in this
Section 6(c) and deliver copies of same as above provided
in Section 6(b) hereof);
and
(d) Use its best efforts to register and qualify the Registrable Securities covered by a
Registration Statement under such other securities or Blue Sky laws of such states as shall be
reasonably appropriate in the opinion of the Company, provided, however, that the
Company shall not be required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states or jurisdictions,
and provided further that (notwithstanding anything in this Agreement to the contrary with
respect to the bearing of expenses) if any jurisdiction in which any of such Registrable Securities
shall be qualified shall require that expenses incurred in connection with the qualification
therein of any such Registrable Securities be borne by the selling Holders, then the selling
Holders shall, to the extent required by such jurisdiction, pay their pro rata share of such
qualification expenses.
(e) Subject
to the terms and conditions of this Agreement, including Section 3 and
Section 4 hereof, the Company shall use its commercially reasonable efforts to (i) prevent
the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or
the suspension of the qualification of any of the Registrable Securities for sale in any
jurisdiction in the United States, and (ii) if such an order or suspension is issued, obtain the
withdrawal of such order or suspension at the earliest practicable moment and notify each holder of
Registrable Securities of the issuance of such order and the resolution thereof or its receipt of
notice of the initiation or threat of any proceeding such purpose.
(f) The Company shall (i) comply with all requirements of FINRA with regard to the issuance of
the Registrable Securities and the listing thereof on the OTC Bulletin Board and such other
securities exchange or automated quotation system, as applicable, and (ii) engage a transfer agent
and registrar to maintain the Company’s stock ledger for all Registrable Securities covered by a
Registration Statement not later than the effective date of a Registration Statement.
(g) The Company will file a Registration Statement and all amendments and supplements thereto
electronically on XXXXX.
7. OBLIGATIONS OF THE HOLDERS.
(a) It shall be a condition precedent to the obligations of the Company to take any action
pursuant to this Agreement that the selling Holders shall furnish to the Company a completed
Selling Stockholder Questionnaire in the form attached as Exhibit B hereto (the
“Selling Stockholder Questionnaire”) and such other information regarding them and the
securities held by them as the Company shall reasonably request and as shall be required in order
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to effect any registration by the Company pursuant to this Agreement. The Company shall not be
required to include the Registrable Securities of any Holder who fails to furnish to the Company a
fully completed Selling Stockholder Questionnaire at least three (3) Trading Days prior to the
Filing Deadline. Additionally, each Holder shall promptly notify the Company of any changes in the
information furnished in the Selling Stockholder Questionnaire or otherwise to the Company.
(b) Each Holder agrees to cooperate with the Company as reasonably requested by the Company in
connection with the filing of any Registration Statement hereunder, unless such Holder has notified
the Company in writing that such Holder elects to exclude all of its Registrable Securities from
such Registration Statement.
(c) Each Holder agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 6(c), each Holder shall immediately discontinue
disposition of Registrable Securities pursuant to any Registration Statement covering such
Registrable Securities until such Holders receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(c) or receipt of notice that no supplement or
amendment is required.
(d) Each Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it or an exemption therefrom in connection with
sale of Registrable Securities pursuant to any Registration Statement.
8. EXPENSES OF REGISTRATION.
(a) Except as set forth in Section 6(d), all expenses incurred in connection with the
registration of the Registrable Securities pursuant to this Agreement (excluding underwriting,
brokerage and other selling commissions and discounts), including without limitation all
registration and qualification and filing fees, printing, fees and disbursements of counsel for the
Company shall be borne by the Company; provided, however, the Holders shall be
required to pay the expenses of counsel and any other advisors for the Holders and any brokerage or
other selling discounts or commissions and any other expenses incurred by the Holders for their own
account.
(b) Until such time as all of the Registrable Securities have been sold pursuant to an
effective Registration Statement, the Company shall take such reasonable action as the Holder may
request (including, without limitation, promptly obtaining any required legal opinions from Company
counsel necessary to effect the sale of the Registrable Securities under Rule 144 and paying the
related fees and expenses of such counsel), all to the extent required from time to time to enable
such Holder to sell the Registrable Securities without registration under the Securities Act
pursuant to the provisions of Rule 144 under the Securities Act (or any successor provision). The
Company further covenants to take such action and to provide such legal opinions within five (5)
Business Days after receipt from such Holder (or its representative) of documentation reasonably
required by the Company counsel to provide such opinion.
9. DELAY OF REGISTRATION. The Holders shall not take any action to restrain, enjoin or
otherwise delay any registration as the result of any controversy which might arise with respect to
the interpretation or implementation of this Agreement.
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10. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling
Holder, and each officer and director of such selling Holder and each person, if any, who controls
such selling Holder, within the meaning of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which they 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 (i) any untrue or alleged untrue statement of any material fact
contained in a Registration
Statement, in any preliminary prospectus or final prospectus relating thereto or in any amendments
or supplements to a Registration Statement or any such preliminary prospectus or final prospectus,
or arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein not misleading; (ii) any
blue sky application or other document executed by the Company specifically for that purpose or
based upon written information furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Registrable Securities under the securities laws thereof (any
such application, document or information herein called a “Blue Sky Application”); (iii)
the omission or alleged omission to state in a Blue Sky Application a material fact required to be
stated therein or necessary to make the statements therein not misleading; (iv) any violation by
the Company or its agents of any rule or regulation promulgated under the Securities Act applicable
to the Company or its agents and relating to action or inaction required of the Company in
connection with such registration of the Registrable Securities; or (v) any failure to register or
qualify the Registrable Securities included in any such Registration Statement in any state where
the Company or its agents has affirmatively undertaken or agreed in writing that the Company will
undertake such registration or qualification on a Holder’s behalf; and will reimburse such selling
Holder, or such officer, director or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained in
this Section 10(a) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, damage, liability or action to the extent that it arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission made in connection with a
Registration Statement, any preliminary prospectus or final prospectus relating thereto or any
amendments or supplements to a Registration Statement or any such preliminary prospectus or final
prospectus, in reliance upon and in conformity with written information furnished expressly for use
in connection with a Registration Statement or any such preliminary prospectus or final prospectus
by the selling Holders or (ii) at any time when the Company has advised the Holder in writing that
the Company does not meet the conditions for use of Rule 172 and as a result that the Holder is
required to deliver a current prospectus in connection with any disposition of Registrable
Securities, an untrue statement or alleged untrue statement or omission in a prospectus that is
(whether preliminary or final) corrected in any subsequent amendment or supplement to such
prospectus that was delivered to the selling Holder
before the pertinent sale or sales by the
selling Holder.
11
(b) To the extent permitted by law, each selling Holder will severally and not jointly
indemnify and hold harmless the Company, each of its directors, each of its officers who have
signed a Registration Statement, each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages or liabilities to which the Company or
any such director, officer, controlling person, may become subject to, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any untrue or alleged untrue statement of any material fact
contained in a Registration Statement or any preliminary prospectus or final prospectus, relating
thereto or in any amendments or supplements to a Registration Statement or any such preliminary
prospectus or final prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent and only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission
(i) was made in a Registration Statement, in any preliminary prospectus or final prospectus
relating thereto or in any amendments or supplements to a Registration Statement or any such
preliminary prospectus or final prospectus, in reliance upon and in conformity with written
information furnished by the selling Holder expressly for use in connection with a Registration
Statement, or any preliminary prospectus or final prospectus or (ii) at any time when the Company
has advised the Holder in writing that the Company does not meet the conditions for use of Rule 172
and as a result that the Holder is required to deliver a current prospectus in connection with any
disposition of Registrable Securities, was corrected in any subsequent amendment or supplement to
such prospectus that was
delivered to the selling Holder before the pertinent sale or sales by the selling Holder; and such
selling Holder will reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, or other selling Holder in connection with
investigating or defending any such loss, claim, damage, liability or action; provided,
however, that the liability of each selling Holder hereunder shall be limited to the net
proceeds received by such selling Holder from the sale of Registrable Securities giving rise to
such liability, and provided further, that the indemnity agreement contained in this
Section 10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent of those selling
Holder(s) against which the request for indemnity is being made (which consent shall not be
unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this Section 10 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10, notify the indemnifying party in
writing of the commencement thereof and the indemnifying party shall have the right to participate
in and, to the extent the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with counsel satisfactory to the
indemnifying party or indemnifying parties, but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified party for contribution
or otherwise under the indemnity agreement contained in this Section 10 (except to the
extent that such omission materially and adversely affects the indemnifying person’s ability to
defend such action). In the event that the indemnifying party assumes any such defense, the
indemnified party may participate in such defense with its own counsel and at its own expense,
provided, however, if the defendants in any such action include
12
both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded, based on an opinion of counsel reasonably satisfactory to the indemnifying
party, that there may be a conflict of interest between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 10 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless the indemnified
party shall have employed such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one separate counsel and one
local counsel, reasonably satisfactory to such indemnifying party, representing all of the
indemnified parties who are parties to such action in which case the reasonable fees and expenses
of counsel shall be at the expense of the indemnifying party.
(d) Notwithstanding anything to the contrary herein, the indemnifying party shall not be
entitled to settle any claim, suit or proceeding unless in connection with such settlement the
indemnified party receives an unconditional release with respect to the subject matter of such
claim, suit or proceeding and such settlement does not contain any admission of fault by the
indemnified party.
(e) If the indemnification provided for in this Section 10 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions or proceedings 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 Company on the
one hand and the Holders on the other in connection with the statements or omissions or other
matters 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 shall be
determined by reference to, among other things, in the case of
an untrue statement, whether the untrue statement relates to information supplied by the Company on
the one hand or a Holder on the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement. The Company and the
Holders agree that it would not be just and equitable if contribution pursuant to this subsection
(e) were determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account the equitable
considerations referred to above in this subsection (e). 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 in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim.
13
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 Holders’ obligations in this subsection to contribute are several
in proportion to their sales of Registrable Securities to which such loss relates and not joint. In
no event shall the contribution obligation of a Holder be greater in amount than the dollar amount
of the net proceeds (net of all expenses paid by such Holder in connection with any claim relating
to this Section 10 and the amount of any damages such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received
by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
(f) The parties to this Agreement hereby acknowledge that they are sophisticated business
persons who were represented by counsel during the negotiations regarding the provisions hereof
including, without limitation, the provisions of this Section 10, and are fully informed
regarding said provisions. They further acknowledge that the provisions of this Section 10
fairly allocate the risks in light of the ability of the parties to investigate the Company and its
business in order to assure that adequate disclosure is made in a Registration Statement as
required by the Securities Act and the Exchange Act.
11. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the Holders the
benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the
Holders to sell the Registrable Securities to the public without registration, the Company agrees:
(i) to make and keep public information available as those terms are understood in Rule 144, (ii)
to file with the SEC in a timely manner all reports and other documents required to be filed by an
issuer of securities registered under the Securities Act or the Exchange Act pursuant to Rule 144,
(iii) as long as any Holder owns any Registrable Securities, to furnish in writing upon such
Holder’s request a written statement by the Company that it has complied with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, and to furnish to such
Holder a copy of the most recent annual or quarterly report of the Company, and such other reports
and documents so filed by the Company as may be reasonably requested in availing such Holder of any
rule or regulation of the SEC permitting the selling of any such Registrable Securities without
registration and (iv) undertake any additional actions reasonably necessary to maintain the
availability of the use of Rule 144.
12. SUSPENSION. Notwithstanding anything in this Agreement to the contrary, in the
event (i) of any non-voluntary demand on the Company by the SEC or any other federal or state
governmental authority during the period of effectiveness of a Registration Statement for
amendments or supplements to a Registration Statement or related prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state governmental authority
of any stop order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose; or
(iv) of any event or circumstance which requires to comply with applicable law the making of any
changes in a Registration Statement or related prospectus, or any document incorporated or deemed
to be incorporated therein by reference, so that, in the case of a Registration Statement, it
14
will not contain any untrue statement of a material fact or any omission to state a material
fact required to be stated therein or necessary to make the statements therein not misleading, and
that in the case of the prospectus, it will not contain any untrue statement of a material fact or
any omission to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
then the Company shall furnish to the selling Holders a certificate signed by the President or
Chief Executive Officer of the Company setting forth in detail the facts relating to one or more of
the above described circumstances, and the right of the selling Holders to use a Registration
Statement (and the prospectus relating thereto) shall be suspended for a period (the
“Suspension Period”) of not more than ten (10) days after delivery by the Company of the
certificate referred to above in this Section 12. During the Suspension Period, none of the
Holders shall offer or sell any Registrable Securities pursuant to or in reliance upon a
Registration Statement (or the prospectus relating thereto). The Company shall use its best efforts
to terminate any Suspension Period as promptly as practicable.
13. TRANSFER OF REGISTRATION RIGHTS. A Holder shall have the right and may transfer or
assign, at any time and from time to time, in whole or in part, to one or more Persons its rights
hereunder in connection with the transfer of the Registrable Securities by such Holder to such
person, provided that (a) such Holder complies with all laws applicable thereto,
(b) the Company is furnished with written notice of the name and address of such transferee or
assignee and the Registrable Securities to which such registration rights are being transferred,
(c) at or before the time the Company received the written notice contemplated by clause (b) of
this sentence the transferee or assignee agrees in writing (i) that it is an “accredited investor”
as that term is defined in Rule 501 of Regulation D, (ii) to be bound by, all of the terms and
conditions of, this Agreement by duly executing and delivering to the Company an Instrument of
Adherence in the form attached as Exhibit C hereto and (iii) agree to deliver the FINRA
Lock-Up if so requested by FINRA.
14. ENTIRE AGREEMENT. This Agreement, the Warrants, the Placement Agency Agreement,
the Subscription Agreement and other documents relating to the Offering (and all exhibits and
supplements to such documents) constitute and contain the entire agreement and understanding of the
parties with respect to the subject matter hereof, and supersede any and all prior negotiations,
correspondence, agreements or understandings with respect to the subject matter hereof.
15. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated, and no rights or provisions may
be waived, except with the written consent of the Company and the holders of a majority of the
Registrable Securities issued and outstanding or issuable upon conversion of Unit Shares and
exercise of the Warrants; provided, that, no consent shall be required in order to
add additional Investors as parties hereto in accordance with the Offering.
(b) This Agreement shall be governed by and construed and enforced solely and exclusively in
accordance with the internal laws of the State of New York and without regard to any conflicts of
laws principles thereof, and shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, permitted
15
transferees, successors or assigns. This Agreement shall also be binding upon and inure to the
benefit of any transferee of any of the Registrable Securities.
(c) Each of the parties hereto irrevocably and expressly submits to the exclusive and sole
jurisdiction of the courts of the State of New York located in New York County and the United
States District Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action or proceeding may
be served on each party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any
such suit, action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
(d) Any notices, reports or other correspondence (hereinafter collectively referred to as
“correspondence”) required or permitted to be given hereunder shall be in writing and shall be sent
by postage prepaid first class mail, courier or telecopy or delivered by hand to the party to whom
such correspondence is required or permitted to be given hereunder, and shall be deemed sufficient
upon receipt when delivered personally or by courier, overnight delivery service or confirmed
facsimile, or three (3) business days after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed
to the party to be notified at such party’s address or facsimile number as set forth below:
(i) All correspondence to the Company shall be addressed as follows:
NYTEX Energy Holdings, Inc.
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, CEO
Facsimile: (000) 000-0000
00000 Xxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxxxxx & Price, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) All correspondence to any Investor shall be sent to such Investor at the address set
forth in the Investor Counterpart Signature Page to the Subscription Agreement.
16
(iii) Any entity may change the address to which correspondence to it is to be addressed by
written notification as provided for herein.
(e) The parties acknowledge and agree that in the event of any breach of this Agreement,
remedies at law may be inadequate, and each of the parties hereto shall be entitled to seek
specific performance of the obligations of the other parties hereto and such appropriate injunctive
relief as may be granted by a court of competent jurisdiction.
(f) Should any part or provision of this Agreement be held unenforceable or in conflict with
the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or
provisions shall be replaced with a provision which accomplishes, to the extent possible, the
original business purpose of such part or provision in a valid and enforceable manner, and the
remainder of this Agreement shall remain binding upon the parties hereto.
(g) This Agreement may be executed in a number of counterparts, any of which together shall
for all purposes constitute one Agreement, binding on all the parties hereto notwithstanding that
all such parties have not signed the same counterpart.
[Signature Page to Follow]
17
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date and year first above written.
| NYTEX ENERGY HOLDINGS, INC. |
||||
| By: | ||||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Executive Officer | ||||
THE INVESTOR’S SIGNATURE TO THE APPLICALBE SUBSCRIPTION AGREEMENT DATED OF EVEN DATE HEREWITH SHALL
CONSTITUTE THE INVESTOR’S SIGNATURE TO THIS REGISTRATION RIGHTS AGREEMENT.
Signature Page to Registration Rights Agreement
18
EXHIBIT A
INVESTOR LIST
A-1
Exhibit B
Registering Stockholder Notice and Questionnaire
[Contained in Booklet containing Investor Signature Pages and Questionnaires provided in connection with the Offering]
B-1
EXHIBIT C
Instrument of Adherence
Reference is hereby made to that certain Registration Rights Agreement, dated as of October
__, 2010, among NYTEX Energy Holdings, Inc., a Delaware corporation (the “Company”), the
Investors and the Investor Permitted Transferees, as amended and in effect from time to time (the
“Registration Rights Agreement”). Capitalized terms used herein without definition shall
have the respective meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of [___________] shares of the
Company’s Series A Convertible Preferred Stock, $0.001 par value per share (the “Preferred
Stock”) or [____________] shares of common stock, par value $0.001 per share of the Company
(the “Common Stock”), or a Warrant or Warrants to purchase [_______] Warrant Shares, hereby
agrees that, from and after the date hereof, the undersigned has become a party to the Registration
Rights Agreement in the capacity of an Investor Permitted Transferee, and is entitled to all of the
benefits under, and is subject to all of the obligations, restrictions and limitations set forth
in, the Registration Rights Agreement that are applicable to Investor Permitted Transferees. This
Instrument of Adherence shall take effect and shall become a part of the Registration Rights
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the State of ______.
| Signature: | ||||
| Name: | ||||
| Title: | ||||
Accepted:
[___________________]
[___________________]
| By: | ||||
| Name: | ||||
| Title: | ||||
Date:______________, 20__
C-1
