REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT
THIS
AGREEMENT (the “Agreement”)
is
made and entered into effective as of the 3rd day of April 2007, by and
between Petro Resources Corporation, a Delaware corporation (the “Company”),
and
the investors signatory hereto (each such investor is a “Purchaser”
or
a
“Holder”
and
all
such investors are, collectively, the “Purchasers”
or
the
“Holders”).
1. Definitions.
In
addition to the terms defined elsewhere in this Agreement, (a) capitalized
terms that are not otherwise defined herein have the meanings given to such
terms in the Purchase Agreement, and (b) the following terms will have the
meanings as set forth herein:
“Commission”
means
the United States Securities and Exchange Commission, and any successor thereto.
“Common
Stock”
means
the Company’s Common Stock, $0.01 par value, or the capital stock of any
successor corporation.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated from time to time thereunder.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture or other non-corporate business enterprise, limited
liability company, joint stock company, trust, organization, business, labor
union or government (or an agency or subdivision thereof) or other entity of
any
kind.
“Registrable
Common”
means
any shares of Common Stock issued or issuable upon conversion of the Shares
pursuant to the Transaction Documents, and any shares of Common Stock issuable
upon the exercise of the Remaining Warrants, together with any securities issued
or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing; provided,
however,
that
Registrable Common will not include any shares, the sale of which has been
registered pursuant to the Securities Act or which have been or could be sold
to
the public pursuant to Rule 144 promulgated by the Commission under the
Securities Act without restriction under the volume limitations of
Rule 144.
“Register,”
“registered”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such Registration Statement.
“Seasoned
Issuer”
means
an issuer eligible to use Form S-3 under the Securities Act for a primary
offering in reliance on General Instruction to I.B.1 to such Form.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated from time to time thereunder.
“Well-Known
Seasoned Issuer”
shall
mean a “well-known seasoned issuer” as defined in Rule 405 promulgated under the
Securities Act and which (i) is a “well-known seasoned issuer” under
paragraph (1)(i)(A) of such definition or (ii) is a “well-known seasoned
issuer” under paragraph (1)(i)(B) of such definition and is also eligible to
register a primary offering of its securities relying on General Instruction
I.B.1 of Form S-3 under the Securities Act.
2.1 Subject
to the limitations and requirements set forth in this Section 2, the
Company will use reasonable best efforts to prepare and file, by April 30,
2007, a registration statement under the Securities Act, on the appropriate
form
covering the resale of all of the Registrable Common (including in an offering
on a delayed or continuous basis pursuant to Rule 415 promulgated under the
Securities Act) and will use reasonable best efforts to cause such registration
statement to become effective as soon as is practicable after such filing;
provided,
however,
that
(A) before filing a registration statement or prospectus or any amendments
or supplements thereto (including any documents incorporated by reference
therein), or before using any “free writing prospectus” (as defined in Rule 405
of the Securities Act) (a “Free
Writing Prospectus”),
the
Company shall provide the Purchasers and their counsel with an adequate and
appropriate opportunity to review and comment on such registration statement,
each prospectus included therein (and each amendment or supplement thereto)
and
each Free Writing Prospectus to be filed with the Commission.
2.2 If
the
Company furnishes to each Purchaser a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board
of
Directors of the Company such registration statement should not be filed at
such
time because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other material transaction
involving the Company (a “Valid
Business Reason”),
then
the Company will have the right to defer such filing for a period ending not
later than thirty (30) days from the filing date of such registration statement
as required herein; provided,
however,
that
the Company may only exercise such right to defer filing once in any period
of
twelve (12) consecutive months.
2.3 Form
S-3 Registration.
Upon
the Company becoming eligible for use of Form S-3 under the Securities Act
in
connection with a secondary public offering of its equity securities (including
an offering on a delayed or continuous basis pursuant to Rule 415
promulgated under the Act (a “Shelf
Registration”))
the
Company shall:
2.3.1 promptly,
but in no event later than ten (10) days before the anticipated filing date
of
such Form S-3, give written notice of the proposed registration, which notice
shall describe the proposed registration, the intended method of disposition
of
such Registrable Common, any related qualification or compliance and any other
information that at the time would be appropriate to include in such notice,
to
all Holders; and
2
2.3.2 effect,
as soon as practicable, such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all Registrable Common, provided, however, that the Company
shall not be obligated to effect any such registration, qualification or
compliance, pursuant to this Section 2.3:
(a) if
Form S-3 is not available for such offering by the Holders; or
(b) if
the
Company shall furnish to the Holders a certificate signed by the Company’s Chief
Executive Officer or Chairman of the Board of Directors stating a Valid Business
Reason, in which event the Company shall have the right to defer such filing
until the Valid Business Reason no longer exists; provided, however, that such
filing may be deferred for a period of not more than thirty (30) days after
the
Company becomes eligible for use of Form S-3; provided, further, that this
right
and the Company’s right under Section 2.2
may not
be exercised by the Company more than once in any period of twelve (12)
consecutive months.
2.3.3 Subject
to the foregoing, the Company shall file a registration statement covering
the
Registrable Common as soon as practicable after the Company becomes eligible
for
use of Form S-3.
2.3.4 The
“Plan
of Distribution” section of such Form S-3 shall permit all lawful means of
disposition of Registrable Common, including firm-commitment underwritten public
offerings, block trades, agented transactions, sales directly into the market,
purchases or sales by brokers, and sales not involving a public
offering.
2.3.5 The
obligations set forth in this Section 2.3
shall
not apply if the Company has a currently effective Automatic Shelf Registration
Statement covering all Registrable Common in accordance with
Section 2.3.6
and has
otherwise complied with its obligations in respect thereof pursuant to this
Agreement.
2.3.6 After
the
registration statement on Form S-3 is declared effective, upon written request
by one or more Holders, the Company shall, as promptly as practicable after
receiving such request, (a) if it is a Seasoned Issuer or Well-Known
Seasoned Issuer, or if such registration statement is an “automatic shelf
registration statement” on Form S-3ASR as defined in Rule 405 promulgated under
the Act (an “Automatic
Shelf Registration Statement”),
file
a prospectus supplement to include such Holders as selling stockholders in
such
registration statement or (b) if it is not a Seasoned Issuer or Well-Known
Seasoned Issuer, and the Registrable Common requested to be registered represent
an anticipated aggregate offering price of more than $5,000,000, file a
post-effective amendment to the registration statement to include such Holders
in such Shelf Registration and use reasonable best efforts to have such
post-effective amendment declared effective as promptly as possible following
such request.
3
2.3.7 Upon
the
Company becoming a Well-Known Seasoned Issuer, (a) the Company shall give
written notice to all of the Holders as promptly as practicable but in no event
later than five (5) days thereafter, and such notice shall describe, in
reasonable detail, the basis on which the Company has become a Well-Known
Seasoned Issuer, and (b) the Company shall, as promptly as practicable,
register, under an Automatic Shelf Registration Statement, the sale of all
of
the Registrable Common held by the Holders in accordance with the terms of
this
Agreement. The Company shall use its reasonable best efforts to file such
Automatic Shelf Registration Statement as promptly as practicable, but in no
event later than 15 days after it becomes a Well-Known Seasoned Issuer, and
to cause such Automatic Shelf Registration Statement to remain effective
thereafter until there are no longer any Registrable Common. The Company shall
give written notice of filing such registration statement to all of the Holders
as promptly as practicable thereafter. At any time after the filing of an
Automatic Shelf Registration Statement by the Company, if it is reasonably
likely that it will no longer be a Well-Known Seasoned Issuer as of a future
determination date (the “Determination Date”), at least 30 days prior to such
Determination Date, the Company shall (i) give written notice thereof to
all of the Holders as promptly as practicable but in no event later than 15
days
prior to such Determination Date and (ii) if the Company is eligible to
file a registration statement on Form S-3 with respect to a secondary public
offering of its equity securities, file a registration statement on Form S-3
with respect to a Shelf Registration in accordance with this
Section 2.3,
and use
its reasonable best efforts to have such registration statement declared
effective prior to the Determination Date. Any registration pursuant to this
Section 2.3.7
shall be
deemed a Shelf Registration for purposes of this Agreement.
3. Registration
Procedures.
When
the Company is required by the terms of this Agreement to effect the
registration of Registrable Common under the Securities Act (including pursuant
to Section 2.3), the Company will:
3.1 Filing.
Prepare
and file with the Commission a registration statement with respect to such
securities, and use reasonable best efforts to cause such registration statement
to become and remain continuously effective until the earlier of (i) such
time as the Purchasers cease to own any Shares or Registrable Common,
(ii) such time as all Registrable Common may be sold pursuant to
Rule 144(k) or (iii) three years from the date of this Agreement.
3.2 Period
of Effectiveness.
Prepare
and file with the Commission such amendments to such registration statement
and
supplements to the prospectus contained therein as may be necessary to keep
such
registration statement continuously effective for the period described in
Section 3.1.
3.3 Copies.
Furnish
to the Holders participating in such registration and, if applicable, to the
underwriters of the securities being registered, prior to filing the
registration statement, at least one copy of such registration statement as
is
proposed to be filed, and thereafter such reasonable number of copies of the
registration statement (including all amendments and supplements thereto),
preliminary prospectus, final prospectus (including all amendments and
supplements thereto), any prospectus filed pursuant to Rule 424 promulgated
under the Securities Act, any Free Writing Prospectus, in each case, in
conformity with the requirements of the Securities Act, and such other documents
as the Holders or such underwriters may reasonably request in order to
facilitate the disposition or public offering of such securities.
4
3.4 Blue
Sky.
Use its
reasonable best efforts to register or qualify the securities covered by such
registration statement under such state securities or blue sky laws of such
jurisdictions as such participating Holder may reasonably request in writing
from time to time, and to continue such registration or qualification in effect
in such jurisdiction for as long as permissible pursuant to the laws of such
jurisdiction, or for as long as any such Holder requests or until all of such
securities are sold, whichever is shortest, and do any and all other acts and
things which may be reasonably necessary or advisable to enable any such Holder
to consummate the disposition in such jurisdictions of the securities owned
by
such Holder, except that the Company will not for any purpose be required to
execute a general consent to service of process or to qualify to do business
as
a foreign corporation or subject itself to taxation in any jurisdiction wherein
it is not so qualified or taxed. The Company shall notify each Holder 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 Common
for sale in any jurisdiction or the initiation or threatening of any proceedings
for such purpose. The Company will not be obligated to take any action to effect
any such registration, qualification or compliance pursuant to this
Section 3.4 in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company already is subject
to service in such jurisdiction and except as may be required by the Securities
Act.
3.5 Notification.
Notify
the Holders participating in such registration, (i) when a prospectus, any
prospectus supplement, any Free Writing Prospectus, a registration statement
or
a post-effective amendment to a registration statement has been filed with
the
Commission, and, promptly after it receives notice thereof, of the time when
such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has become effective,
and (ii) of the existence of any fact or happening of any event which makes
any statement of a material fact in a registration statement, related prospectus
or Free Writing Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or which would require the making
of
any changes in the registration statement, prospectus or Free Writing Prospectus
in order that, in the case of the registration statement, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that in the case of such prospectus or Free Writing Prospectus,
it will not contain any untrue statement of a material fact or omit to state
any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
3.6 Amendment
Notice.
Promptly notify the Holders participating in such registration promptly of
any
request by the Commission or any other federal or state governmental authority
to amend or supplement such registration statement, prospectus or Free Writing
Prospectus or to provide additional information.
5
3.7 Update.
Prepare
and promptly file with the Commission and promptly notify the Holders
participating in such registration of the filing of such amendment or supplement
to such registration statement, prospectus or Free Writing Prospectus as may
be
necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under the
Securities Act, any event has occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading.
3.8 Stop
Orders.
Advise
the Holders participating in such registration, promptly after it receives
notice or obtains knowledge thereof, of the issuance of any stop order by the
Commission or any other federal or state governmental authority suspending
the
effectiveness of such registration statement or the initiation or threatening
of
any proceeding for that purpose and promptly take all actions required to
prevent the issuance of any stop order or to obtain its withdrawal if such
stop
order should be issued.
3.9 Filing
Fees.
Within
the deadlines specified by the Securities Act, make all required filing fee
payments in respect of any registration statement or prospectus used under
this
Agreement (and any offering covered thereby).
3.10 Securities
Exchange.
Cause
all shares of Registrable Common to be listed on each securities exchange on
which Common Stock issued by the Company is then listed, provided
that the
applicable listing requirements are satisfied.
3.11 Transfer
Agent.
Provide
a transfer agent and registrar for all such Registrable Common and a CUSIP
number for all Registrable Common, in each case not later than the effective
date of such registration statement.
3.12 Limitations
on Covered Securities.
Any
registration filed pursuant to this Agreement shall cover only the Registrable
Common and no other securities of the Company.
4. Expenses.
With
respect to the registration requested pursuant to Section 2 hereof and with
respect to each inclusion of Registrable Common in a registration statement
pursuant to Section 2 hereof, the Company will bear all of its fees, costs
and expenses, including: (i) all Commission, stock exchange and NASD
registration and filing fees; (ii) all printing, messenger, and delivery
expenses; (iii) all fees, expenses and disbursements of counsel and
accountants for the Company; (iv) all internal Company expenses;
(v) all legal fees and disbursements and other expenses of complying with
state securities or blue sky laws of any jurisdictions in which the securities
to be offered are to be registered or qualified; and (vi) the premiums and
other costs of policies of insurance against liability (if any) arising out
of
such public offering. Fees and disbursements of counsel and accountants for
the
Holders, underwriting discounts and commissions and transfer taxes relating
to
the shares included in the offering by the Holders, and any other expenses
incurred by the Holders will be borne by the Holders.
6
5. Indemnification.
5.1 Indemnification
by Company.
To the
fullest extent permitted by law, the Company will indemnify and hold harmless
each Holder which has Registrable Common included in a registration statement
pursuant to the provisions hereof, its stockholders, partners, members,
directors, officers, and Affiliates and any underwriter (as defined in the
Securities Act) for such Holder and each Person, if any, who controls such
Holder or such underwriter within the meaning of the Securities Act, from and
against, and will reimburse each of such Holder and each such underwriter and
controlling Person with respect to, any and all loss, claim, damage, expense
and
liability (collectively, “Losses”)
to
which such Holder or any such underwriter or controlling Person may become
subject under the Securities Act, state securities laws or otherwise, and the
Company will pay to each such Holder, underwriter or controlling person any
legal or other costs or expenses reasonably incurred by such person in
connection with investigating or defending any such Loss, insofar as such Losses
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, prospectus or
Free Writing Prospectus contained therein or any amendment or supplement
thereto, 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, in light of the circumstances in which they were made,
not misleading; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
Loss
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by such Holder, such underwriter or such controlling Person in writing
specifically for use in the preparation thereof; provided,
further,
that
the indemnity agreement in this Section 5.1 will not apply to amounts paid
in settlement of any such Loss if such settlement is effected without the
consent of the Company, which consent will not be unreasonably withheld, and
that the foregoing indemnity obligation with respect to any preliminary
prospectus or final prospectus (if such final prospectus has been amended or
supplemented and such amendments or supplements have been furnished to such
Holder prior to the written confirmation of the sale involved) will not inure
to
the benefit of any Holder on account of any Loss whatsoever arising from the
sale of any Registrable Common by such Holder to any person if (A) a copy
of the final prospectus (as amended or supplemented if such amendments or
supplements have been furnished to such Holder prior to the written confirmation
of the sale involved) has not been sent or given by or on behalf of such Holder
to such person, if required by law, with or prior to the written confirmation
of
the sale involved, and (B) the untrue statement or alleged untrue statement
or omission or alleged omission of a material fact contained in such preliminary
prospectus or final prospectus from which such Loss arose was corrected in
the
final prospectus (as amended or supplemented if such amendments or supplements
thereto have been furnished as aforesaid).
5.2 Indemnification
by Holder.
Each
Holder which has Registrable Common included in a registration statement
pursuant to the provisions hereof will severally, but not jointly, indemnify
and
hold harmless the Company, its directors and officers, each Person, if any,
who
controls the Company within the meaning of the Securities Act, any other Holder
selling securities pursuant to such registration statement, any controlling
Person of any such selling Holder, any underwriter and any controlling Person
of
any such underwriter (each, an “Indemnitee”)
from
and against, and will reimburse any Indemnitee with respect to, any and all
Losses to which such Indemnitee may become subject under the Securities Act,
state securities laws or otherwise, and such Holder will pay to each Indemnitee,
any legal or other costs or expenses reasonably incurred by such person in
connection with investigating or defending any such Loss, insofar as such Losses
are caused by any untrue or alleged untrue statement of any material fact
contained in such registration statement, prospectus or Free Writing Prospectus
contained therein or any amendment or supplement thereto, or arise out of or
are
based upon the omission or the alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances in which they were made, not misleading, in each
case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance upon
and in conformity with written information furnished by such Holder specifically
for use in the preparation thereof; provided,
however,
that
the indemnity agreement in this Section 5.2
will not
apply to amounts paid in settlement of any such Loss if such settlement is
effected without, and that the foregoing indemnity obligation with respect
to
any preliminary prospectus or final prospectus (if such final prospectus has
been amended or supplemented and such amendments or supplements have been
furnished to such Indemnitee prior to the written confirmation of the sale
involved) will not inure to the benefit of any Indemnitee on account of any
Loss
whatsoever arising from the sale of any Registrable Common by the Holder to
any
person if (A) a copy of the final prospectus (as amended or supplemented if
such amendments or supplements have been furnished to such Indemnitee prior
to
the written confirmation of the sale involved) has not been sent or given by
or
on behalf of such Indemnitee to such person, if required by law, with or prior
to the written confirmation of the sale involved, and (B) the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such preliminary prospectus or final prospectus
from
which such Loss arose was corrected in the final prospectus (as amended or
supplemented if such amendments or supplements thereto have been furnished
as
aforesaid); provided,
further,
that
the obligations of each Holder under this Section 5.2
will be
limited to an amount equal to the net proceeds to such Holder from the sale
of
Registrable Common as contemplated herein, unless such claim, loss, damage,
liability or action resulted from such Holder’s fraudulent
misconduct.
7
5.3 Indemnification
Procedures.
Promptly after receipt by a party entitled to indemnification pursuant to this
Section (each, an “Indemnified
Party”)
of
notice of the commencement of any action involving the subject matter of the
foregoing indemnity provisions such Indemnified Party will, if a claim is to
be
made against the party obligated to provide indemnification pursuant to this
section (each, an “Indemnifying
Party”),
promptly notify the Indemnifying Party of the commencement thereof; provided,
however,
that
the omission to provide such notice will not relieve the Indemnifying Party
from
any liability hereunder, except to the extent that the delay in giving, or
failing to give, such notice has a material adverse effect upon the ability
of
the Indemnifying Party to defend against the claim. In case such action is
brought against an Indemnified Party, the Indemnifying Party will have the
right
to participate in and, at the Indemnifying Party’s option, to assume the defense
thereof, singly or jointly with any other Indemnifying Party similarly notified,
with counsel or reasonably satisfactory to the Indemnified Party; provided,
further,
that
(a) if the defendants in any action include both the Indemnified Party and
the Indemnifying Party and the Indemnified Party reasonably concludes that
there
may be legal defenses available to any Indemnified Parties that are different
from or additional to those available to the Indemnifying Party, or if there
is
a conflict of interest which would prevent counsel for the Indemnifying Party
from also representing the Indemnified Party, the Indemnified Party will have
the right to select counsel to participate in the defense of such action on
behalf of such Indemnified Party at the expense of the Indemnifying Party and
(b) the Indemnifying Party will be responsible for the expenses of only one
such special counsel (and one local counsel if necessary for jurisdictional
purposes) selected jointly by the Indemnified Parties if there is more than
one
Indemnified Party. After notice from an Indemnifying Party to any Indemnified
Party of such Indemnifying Party’s election to assume the defense or the action,
the Indemnifying Party will not be liable to such Indemnified Party pursuant
to
this Section 5
for any
legal or other expense subsequently incurred by such Indemnified Party in
connection with the defense thereof, unless (i) the Indemnified Party has
employed counsel in accordance with the proviso of the preceding sentence,
or
(ii) the Indemnifying Party has not employed counsel satisfactory to the
Indemnified Party to represent the Indemnified Party within a reasonable time
after the notice of the commencement of the action, or (iii) the
Indemnifying Party has authorized the employment of counsel for the Indemnified
Party at the expense
of
the Indemnifying Party.
5.4 Contribution.
If the
indemnification provided for in this Section 5
from the
Indemnifying Party is unavailable to an Indemnified Party hereunder in respect
of any liabilities referred to herein, then the Indemnifying Party, in lieu
of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such liabilities in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions which resulted in
such liabilities, as well as any other relevant equitable considerations,
including the relative benefits received from the offering. The relative faults
of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including
any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such action. The relative benefits received by the Indemnifying Party
and the Indemnified Party shall be deemed to equal the total net proceeds
received by it in the sale of Registrable Common. The amount paid or payable
by
a party as a result of the liabilities referred to above shall be deemed to
include, subject to the limitations set forth in Sections 5.1,
5.2
and
5.3,
any
legal or other fees, charges or expenses reasonably incurred by such party
in
connection with any investigation or proceeding; provided,
however,
that
the total amount to be contributed by such Holder shall be limited to the net
proceeds received by such Holder in the sale of Registrable Common. The parties
hereto agree that it would not be just and equitable if contribution pursuant
to
this Section 5.4 were determined by pro
rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to herein. 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.
8
6. Cooperation.
Any
Holder whose Registrable Common are to be included in a Registration Statement
either filed pursuant to a demand or as part of a Company registration agrees
to
cooperate with all reasonable requests by the Company necessary to effectuate
the purposes of this Agreement, including by timely providing the Company with
all information necessary to prepare and file a registration statement. The
Company shall cooperate with each Holder of Registrable Common, and their
respective counsel in connection with any filings required to be made with
the
National Association of Securities Dealers. The Company shall take all other
steps reasonably necessary to effect the registration and disposition of the
Registrable Common contemplated hereby.
7. 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 Commission that may at any time permit a Holder
to sell securities of the Company to the public without registration or pursuant
to a registration on Form S-3, the Company agrees to:
7.1 make
and
keep public information available, as those terms are understood and defined
in
Rule 144, at all times after the effective date of the registration
statement;
7.2 file
with
the Commission in a timely manner all reports and other documents required
of
the Company under the Securities Act and the Exchange Act; and
7.3 so
long
as the Holder owns any Registrable Common, forthwith upon request
(i) furnish to any Holder a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, or that it qualifies as a registrant whose securities
may
be resold pursuant to Form S-3 (at any time after it so qualifies),
(ii) furnish to any 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, and (iii) take such further action and furnish such other
information as may be reasonably requested in availing any Holder of any rule
or
regulation of the Commission that permits the selling of any such securities
without registration or pursuant to such form.
8. Miscellaneous.
8.1 Waivers,
Amendments and Approvals.
In each
case in which the approval of the Holder is required by the terms of this
Agreement, such requirement will be satisfied by a vote or the written action
of
Holders of at least a majority of the Registrable Common held by all the
Holders, unless a higher percentage is specifically required by the terms of
this Agreement. Any term or provision of this Agreement requiring performance
by
or binding upon the Company or the Holders may be amended, and the observance
of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only by a writing signed
by
the Company and the Holders of at least a majority of the Registrable Common
held by all the Holders. Any amendment or waiver effected in accordance with
this Section will be binding upon all of the Holders (including permitted
assigns pursuant to Section 8.5
hereof).
The waiver by a party of any breach hereof or default in payment of any amount
due hereunder or default in the performance hereof will not be deemed to
constitute a waiver of any other default or succeeding breach or default.
Written notice of any such waiver, consent or agreement of amendment,
modification or supplement will be given to the record Holder of Registrable
Common who did not give written consent thereto.
9
8.2 Notices.
All
notices, requests, consents and other communications required or permitted
hereunder will be in writing and will be delivered either by (i) personal
delivery, (ii) registered or certified airmail, postage prepaid or
(iii) facsimile, as follows:
8.2.1 to
a
Holder, addressed to such Holder at the address set forth in the Purchase
Agreement.
8.2.2 to
the
Company, to:
Petro
Resources Corporation
0000
Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxx
Fax:
(000) 000-0000
and
such
notices and other communications will for all purposes of this Agreement be
treated as being effective or having been given if delivered personally, or,
if
sent by mail, when received. Any party may change its address for such
communications by giving notice thereof to the other parties in conformity
with
this Section.
8.3 Entire
Agreement.
This
Agreement, the documents referenced herein and the exhibits thereto, constitute
the entire understanding and agreement of the parties hereto with respect to
the
subject matter hereof and thereof and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto and thereto. The
express terms hereof control and supersede any course of performance or usage
of
the trade inconsistent with any of the terms hereof.
8.4 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Neither the Company nor any Purchasers
may assign this Agreement or any rights or obligations hereunder without the
prior written consent of each the other party (other than by merger); provided,
however, that each Purchaser may assign all of its rights or obligations
hereunder without the consent of the Company, to an Affiliate of such Purchaser
or in connection with a private sale or transfer of 50% or more of the shares
of
Series A Preferred Stock or Registrable Common to a third party (or to one
or
more third parties that are Affiliates).
8.5 Other
Remedies.
Any and
all remedies herein expressly conferred upon a party will be deemed cumulative
with, and not exclusive of, any other remedy conferred hereby or by law on
such
party, and the exercise of any one remedy will not preclude the exercise of
any
other. The
Holders, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, shall be entitled to specific performance of
their rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agrees to waive in any
action for specific performance the defense that a remedy at law would be
adequate.
10
8.6 Delays
or Omissions.
Except
as expressly provided herein, no delay or omission to exercise any right, power
or remedy accruing to any party under this Agreement will impair any such right,
power or remedy of such party nor will it be construed to be a waiver of any
such breach or default, or an acquiescence thereto, or of a similar breach
of
default thereafter occurring; nor will any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party hereto of any breach or default under the
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement must be in writing and will be effective only
to
the extent specifically set forth in such writing.
8.7 Governing
Law.
This
Agreement will be governed by and construed under the laws of the State of
Delaware, without regard to the conflict of laws principles thereof.
Each
party to this Agreement hereby irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement or any agreements or
transactions contemplated hereby may be brought in the courts of the State
of
Delaware located in the State of Delaware or of the United States of America
within the State of Delaware and hereby expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and expressly
waives any claim of improper venue and any claim that such courts are an
inconvenient forum.
8.8 Counterparts.
This
Agreement may be executed concurrently (including facsimile signatures) in
two
or more counterparts, each of which will be deemed an original, but all of
which
together will constitute one and the same instrument.
8.9 Severability.
Should
any one or more of the provisions of this Agreement or of any agreement entered
into pursuant to this Agreement be determined to be illegal or unenforceable,
all other provisions of this Agreement and of each other agreement entered
into
pursuant to this Agreement, will be given effect separately from the provision
or provisions determined to be illegal or unenforceable and will not be affected
thereby.
PETRO
RESOURCES CORPORATION
By:
/s/
Xxxxx X.
Xxxx
Xxxxx
X.
Xxxx, Chief Executive Officer
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES OF PURCHASERS TO FOLLOW]
11
TOURADJI GLOBAL RESOURCES MASTER FUND, LTD | |
By:
Touradji Capital Management LP its Investment
Manager
|
|
By: /s/ Xxxxxx X. Xxxx | |
Name: Xxxxxx X. Xxxx | |
Title: Chief Financial Officer | |
TOURADJI DEEPROCK MASTER FUND, LTD | |
By: Touradji Capital Management LP its Investment Manager | |
By: /s/ Xxxxxx X. Xxxx | |
Name: Xxxxxx X. Xxxx | |
Title: Chief Financial Officer |
Address
for Notice:
Touradji
Global Resources Master Fund, Ltd.
Touradji
DeepRock Master Fund, Ltd.
Attn:
Xxxxxx X. Xxxx
000
Xxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx, XX 00000
|
12