REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made as of
February 17, 2010, by and among Xxxx Xxxx Petroleum Corporation a Delaware
corporation (the “Company”) and Xxxxxx Xxxxx and
Evergreen Syndications, LLC, the holders of certain Warrants to purchase the
$.001 par value common stock of the Company, (“Warrants”) listed on the
signature pages hereto (such holders of Warrants referred to herein as the
“Warrant Holders” and
each individually a “Warrant
Holder”)
RECITALS
A. Investors
in the capital stock of the Company are acquiring Warrants to purchase the
Company’s par value $0.001 per share common stock (“Warrants”) pursuant to a
Termination and Settlement Agreement dated February 17, 2010 between the Company
and the Warrant Holders (the “Termination and Settlement
Agreement”).
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises herein contained, and other
consideration, the receipt and adequacy of which hereby is acknowledged, the
parties hereto agree as follows:
1.
Certain
Definitions
1.1 “Affiliate”
or “Affiliated entity or person” means, as to any specified Person any other
Person that, directly or indirectly through one or more intermediaries or
otherwise, controls, is controlled by or is under common control with the
specified Person. As used in this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person (whether through ownership
of capital stock of that Person, by contract or otherwise), or the ability to
exercise investment discretion through contractual provisions or
otherwise.
1.2 “Common
Stock” means the Company's common stock, par value $0.001 per
share.
1.3 “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder, all as the same shall be in
effect at that time.
1.4 “Holder”
shall mean a holder of Registrable Securities.
1.5 “Piggyback
Registrations” means registrations effected pursuant to Section 3.1(a) of this
Agreement.
|
Exhibit
E
|
|
|
Evergreen
Syndications Registration Rights Agreement
|
|
|
Xxxx
Xxxx Petroleum Corporation
|
Page
1 of 6
|
1.6 The
terms “register”, “registered” and “registration” refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (as defined below), and the declaration or ordering of the
effectiveness of such registration statement.
1.7 “Registrable
Securities” shall mean the shares of Common Stock of the Company issuable or
issued upon execution of the Warrants.
1.8 “SEC”
shall mean the Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.
1.9 “Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder, all as the same shall be in
effect at the time.
1.10 “Stock”
means and includes all securities and options issued by the
Company.
1.11 “Warrants”
means the Warrants as defined in the Termination and Settlement
Agreement
2.
Restrictive
Legend. Each certificate representing Registrable Securities
shall (unless otherwise permitted or unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required under applicable state securities
laws):
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT. THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS AND HOLDER RIGHTS AS SET FORTH
IN A REGISTRATION RIGHTS AGREEMENT ENTERED INTO BY THE HOLDER OF THESE SHARES,
THE COMPANY AND CERTAIN OTHER STOCKHOLDERS OF THE COMPANY. A COPY OF
SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED BY THE COMPANY TO THE HOLDER HEREOF WITHOUT CHARGE UPON THE WRITTEN
REQUEST TO THE COMPANY.”
Upon
request of a holder of such a certificate, the Company shall remove the
foregoing legend from the certificate or issue to such holder a new certificate
therefor free of any transfer legend, if, with such request, the Company shall
have received either: (i) a written opinion of legal counsel to the holder,
addressed to the Company and reasonably satisfactory in form and substance to
the Company's counsel, to the effect that the proposed transfer of the Stock may
be effected without registration under the Securities Act and that the legend
may be removed; or (ii) a “no-action” letter from the SEC to the effect that the
distribution of such securities without registration will not result in a
recommendation by the staff of the SEC that action be taken with respect
thereto, and provided that the Company shall not be obligated to remove any such
legends prior to the date of the initial public offering of the Company's Common
Stock under the Securities Act.
|
Exhibit
E
|
|
|
Evergreen
Syndications Registration Rights Agreement
|
|
|
Xxxx
Rose Petroleum Corporation
|
Page
2 of 6
|
3. Registration
Rights
a. Company Registration
(Piggyback Registration). If the Company files a registration statement with the
U.S. Securities and Exchange Commission, the Company shall provide 10 days
notice to Warrant Holder of said registration statement and include Warrant
Holder’s Registrable Securities at Warrant Holder’s option. Warrant
Holder acknowledges that plans to file a registration statement may be material
non-public information and hereby covenants not to trade in company shares
between the time of receipt of notice of the planned registration statement
filing and the actual filing of the registration statement. Warrant
Holder’s registration rights shall not apply to Form S-8 registration
statements, registration statements relating to shares for employee benefit
plans, and registration statements, such as a Form 10 registration statement,
that are not intended to authorize the secondary sale of
securities. These registration rights shall further be limited by
reference to SEC Rule 415 in that the number of shares to be registered shall be
reduced on a pro rata basis with other shareholders’ common shares to be
included in the registration statement if the number of shares to be included in
the registration statement is required to be limited by SEC Rule
415. The determination of how many shares may be subject to the SEC
Rule 415 limitation shall be determined by the Company in its sole
discretion.
b. Rule 144
Reporting. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
|
|
i.
|
Make
and keep public information available as those terms are understood and
defined in Rule 144 under the Securities Act, at all times from and after
ninety (90) days following the effective date of the first registration
under the Securities Act filed by the Company for an offering of its
securities to the general public;
|
|
|
ii.
|
Use
its commercially reasonable efforts to 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 at any time after it has
become subject to such reporting
requirements;
|
|
|
iii.
|
So
long as a Warrant Holder owns any Registrable Securities or Warrant to
purchase Registrable Securities, furnish to Warrant Holders forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (provided that the Company remains
subject to reporting requirements under the Securities Exchange Act of
1934).
|
c.
Termination of
Rights. Unless otherwise provided herein, the rights and
provisions of this Article 3 shall terminate five years following the date of
this Agreement.
|
Exhibit
E
|
|
|
Evergreen
Syndications Registration Rights Agreement
|
|
|
Xxxx
Xxxx Petroleum Corporation
|
Page
3 of 6
|
d. Transfer or Assignment of
Registration Rights. The rights to cause the Company to
register Warrant Holders’ securities granted by the Company under this Article 3
are not transferable without the written consent of the Company.
4.
Termination, Waiver, Miscellaneous.
4.1 Waivers. Any
waiver by a party of its rights hereunder will be effective only if evidenced by
a written instrument executed by such party or its authorized representative and
shall not constitute a waiver of any rights provided in this Agreement with
respect to any subsequent transactions covered by this Agreement.
4.2 Obligation of the
Company. The Company shall enforce the terms of this
Agreement, promptly inform Warrant Holders of any breach hereof (to the extent
the Company has knowledge thereof) and assist Warrant Holders in the exercise of
their rights and the performance of their obligations hereunder.
4.3 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
4.4 Governing
Law. This Agreement shall be construed in accordance with, and
governed in all respects by, the internal laws of the State of
Delaware.
4.5 Arbitration
Clause. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, including the arbitrability of any
controversy or claim, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules and the Optional Rules for Emergency Measures of
Protection of the American Arbitration Association (“AAA”), and judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Any provisional remedy which would be available
from a court of law shall be available from the arbitrator to the Parties to
this Agreement pending arbitration. Civil discovery shall be
permitted for the production of documents and taking of depositions. The
arbitrator(s) shall be guided by the Court Rules of the New York Unified Court
System in allowing discovery and all issues regarding compliance with discovery
requests shall be decided by the arbitrator(s). The Federal
Arbitration Act shall govern all arbitration proceedings under this Agreement.
This Agreement shall in all other respects be governed and interpreted by the
laws of the State of New York, excluding any conflicts or choice of law rule or
principles that might otherwise refer construction or interpretation of this
Agreement to the substantive law of another jurisdiction. The
arbitration shall be conducted in New York, New York by one neutral arbitrator
chosen by AAA according to its Commercial Arbitration Rules if the amount of
claim is one million ($1,000,000.00) or less and by three neutral arbitrators
chosen by AAA in the same manner if the amount of the claim is more than one
million ($1,000,000.00). Neither Party nor the arbitrator(s) may
disclose the existence, content, or results of any arbitration hereunder without
the prior written consent of both Parties. All fees and expenses of the
arbitration shall be borne by the Parties equally. Each Party shall
bear the expense of its own counsel, experts, witnesses, and preparation and
presentation of proofs, however, the prevailing Party shall be entitled to an
award of reasonable attorney’s fees and expenses, including the cost of the
mediation, and such Party’s share of the arbitration fees and
expenses. This agreement to arbitrate shall survive the termination
and repudiation of this Agreement. Any award rising from such
arbitration shall be final and binding on the Parties and may be entered in any
court of competent jurisdiction to the extent necessary for the enforcement
thereof, and the prohibition against non-disclosure provided in this section
shall not apply to such actions.
|
Exhibit
E
|
|
|
Evergreen
Syndications Registration Rights Agreement
|
|
|
Xxxx
Rose Petroleum Corporation
|
Page
4 of 6
|
4.6 Notices. All
notices and other communications required or permitted hereunder shall be in
writing and shall be mailed by first-class mail, postage prepaid, or otherwise
delivered by hand or by messenger, at the most recently provided address as such
party shall have furnished to the Company.
4.7 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, portions of such provisions, or such provisions in their
entirety, to the extent necessary, shall be severed from this Agreement, and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
4.8 Further
Assurances. Each party hereby agrees to execute and deliver
all such further instruments and documents and take all such other actions as
the other party may reasonably request in order to carry out the intent and
purposes of this Agreement.
4.9 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience in construing or interpreting this Agreement.
4.10 Delays or
Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party to this Agreement, upon any breach or default of
the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of any similar breach or default
thereafter occurring; nor shall 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 of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, or by law or otherwise afforded to any
Warrant Holder, shall be cumulative and not alternative.
4.11 Entire
Agreement. This Agreement and the documents referred to herein
constitute the entire agreement between the parties hereto pertaining to the
subject matter hereof and any other written or oral agreements between the
parties hereto are expressly canceled.
4.12 Amendments. This
Agreement may not be amended without the written consent of the Company and the
holders of a majority of the issued and outstanding Warrants.
|
Exhibit
E
|
|
|
Evergreen
Syndications Registration Rights Agreement
|
|
|
Xxxx
Xxxx Petroleum Corporation
|
Page
5 of 6
|
4.13 Additional
Parties. Any purchaser of Warrants issued pursuant to the
Termination and Settlement Agreement shall become a party to this Agreement by
executing and delivering to the Company a counterpart to this
Agreement. Upon such execution and delivery, such purchaser shall be
deemed to be a Warrant Holder hereunder with all of the rights and obligations
thereof.
*****
IN
WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the day and year first above written.
|
Xxxx
Rose Petroleum Corporation
|
|
|
By:
|
|
|
Xxxxxx
Xxxxxx-Xxxxxxx
|
|
|
President
|
|
|
WARRANT
HOLDERS:
|
|
|
|
|
|
Xxxxxx
Xxxxx
|
|
|
Evergreen
Syndications, LLC
|
|
|
By:
|
|
|
Xxxxxx
Xxxxx, Manager
|
|
|
Exhibit
E
|
|
|
Evergreen
Syndications Registration Rights Agreement
|
|
|
Xxxx
Rose Petroleum Corporation
|
Page
6 of 6
|
