REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
This
Registration Rights Agreement (the “Agreement”) is made and entered into as of
this ___
day
of June, 2006 by and among Index Oil & Gas Inc., a Nevada corporation (the
“Company”), the persons whose name appears on the signature page attached hereto
(individually a "Investor" and collectively, with all other investors, the
"Investors").
The
parties hereby agree as follows:
1. Certain
Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
“Affiliate”
means,
with respect to any person, any other person which directly or indirectly
controls, is controlled by, or is under common control with, such
person.
“Acquisition”
means
the acquisition of Index Oil & Gas Ltd. by the Company pursuant to a certain
Acquisition Agreement, dated January 20, 2006.
“Business
Day”
means
a
day, other than a Saturday or Sunday, on which banks in New York are open for
the general transaction of business.
“Common
Stock”
shall
mean the Company’s common stock, $.001 par value, and any securities into which
such shares may hereinafter be reclassified.
“Investors”
shall
mean the Subscribers
whose name appears on the signature page attached to
the
Subscription Agreement entered among the Company and each individual Investor,
and any Affiliate or permitted transferee of any Investor who is a subsequent
holder of any Warrants or Registrable Securities.
“Prospectus”
shall
mean the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus.
“Register,”
“registered”
and
“registration”
refer
to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act (as defined below), and the
declaration or ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities”
shall
mean the Shares, Warrant Shares, 22,615,552 shares of Common Stock issued in
connection with the Acquisition, 8,533,333 shares of Common Stock issued by
the
Company pursuant to the private offering which concluded on January 20, 2006,
and any other securities issued or issuable with respect to or in exchange
for
Registrable Securities; provided, that, a security shall cease to be a
Registrable Security upon (A) sale pursuant to a Registration Statement or
Rule
144 under the 1933 Act, or (B) such security becoming eligible for sale by
the
Investors pursuant to Rule 144(k).
“Registration
Statement”
shall
mean any registration statement of the Company filed under the 1933 Act that
covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
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“Required
Investors”
means
the Investors holding a majority of the Registrable Securities.
“SEC”
means
the U.S. Securities and Exchange Commission.
“Shares”
means
the shares of Common Stock issued pursuant to the Subscription
Agreement.
“Warrants”
means
1,092,766 in aggregate amount of warrants issued in connection with the
acquisition of Index Oil & Gas Ltd. by the Company pursuant to a certain
Acquisition Agreement, dated January 20, 2006.
“Warrant
Shares”
means
shares of Common Stock issuable upon the exercise of the Warrants.
“1933
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
2. Registration.
2.1(a) Registration
Statement. The
Company shall use its best efforts to prepare and file a Registration Statement
on a form that shall (A) be available for the sale of the Registrable Securities
by the Investors and (B) comply as to form with the requirements of the
applicable form on which such Registration Statement is filed and include all
financial statements required by the SEC to be filed therewith ("REGISTRATION
STATEMENT") with the SEC within sixty (60) days of the Closing Date (“FILING
DATE”) to provide for the offer and sale of the Registrable Securities and shall
use its best efforts to cause the Registration Statement to become effective
under the Act no later than the earlier of (i) one hundred and eighty (180)
days
after the Closing Date and (ii) the sixth (6th) business day following the
date
on which the Company is notified by the SEC that such Registration Statement
will not be reviewed or is no longer subject to further review and comments
("EFFECTIVE DATE"). The Registration Statement filed pursuant to this Section
2.1(a) may, at the Company's discretion include securities of the Company other
than the Registrable Securities. If the Company does not file the Registration
Statement by the Filing Date (the “Filing Date Requirement”), or the SEC has not
declared the Registration Statement effective by the Effectiveness Deadline
(the
“Effective Date Requirement”), the Company will be liable to the Investors for
partial liquidated damages, in each instance, in the amount of 2% of the
aggregate Subscription Amounts, as defined in the Subscription Agreement, for
all of the Investors. The Company shall be further liable to the same extent
for
each subsequent 30 day period in which the Filing Date Requirement or the
Effective Date Requirement, as the case may be, has not been met, subject to
an
overall limit of up to 15 months of partial liquidated damages.
2.2
Piggyback
Registration.
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(a)
From
and
after the Closing Date and until such time as the Registrable Securities are
freely saleable under Rule 144(k) without volume limitations, if the Company
shall determine to proceed with the preparation and filing of a Registration
Statement in connection with the proposed offer and sale of any of its
securities by it or any of its security holders (other than a registration
statement on Form X-0, X-0, any successor form thereto or other limited purpose
form), the Company will give written notice of its determination to all record
Investors of the Registrable Securities at least twenty (20) days prior to
filing. Upon receipt of a written request from any such Holder within twenty
(20) days after receipt of any such notice from the Company, the Company will,
except as herein provided, cause all the Registrable Securities owned by such
Investors to be included in such Registration Statement in order to permit
the
sale or other disposition by the prospective seller or sellers of the
Registrable Securities to be so registered. If any registration pursuant to
this
Section 2.2 shall be underwritten in whole or in part, the Company shall cause
the Registrable Securities requested for inclusion pursuant to this Section
2.2
to be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters, except to the extent
provided in Section 2.2(b) below. In such event the right of any Holder to
registration shall be conditioned upon such underwriting and the inclusion
of
such Holder's Registrable Securities in such underwriting to the extent provided
in Section 2.2(b) below. All Investors proposing to distribute their securities
through such underwriting shall (together with the Company and the other
investors distributing their securities through such underwriting) enter into
an
underwriting agreement with the underwriters' representative for such offering;
provided that such holders shall have no right to participate in the selection
of the underwriters for an offering pursuant to this Section 2.2(a). The
obligation of the Company under this Section 2.2 shall be unlimited as to the
number of Registration Statements to which it applies. Notwithstanding the
foregoing, to the extent that all Registrable Securities are registered on
an
effective Registration Statement on Form S-3, the Company shall not be required
to provide notice to Investors of the preparation and filing of a registration
statement in connection with the proposed nonunderwritten offer and sale of
any
of its securities and the Investors shall not be entitled to include any
Registrable Securities on such registration statement.
(b)
In
connection with an underwritten public offering for the account of the Company,
if, in the opinion of the underwriters' representative market factors
(including, without limitation, the aggregate number of shares of Common Stock
requested to be registered, the general condition of the market, and the status
of the persons proposing to sell securities pursuant to the registration)
require a limitation of the number of shares to be underwritten, the
underwriters' representative may exclude some or all Registrable Securities
from
such registration and underwriting and the Company shall be obligated to include
in such Registration Statement only such limited portion of the Registrable
Securities with respect to which the Investors have requested inclusion
hereunder as the underwriters shall permit. Any exclusion of Registrable
Securities shall be made pro rata among the Investors seeking to include
Registrable Securities, in proportion to the number of Registrable Securities
sought to be included by such holder; provided, however, that the Company shall
not exclude any Registrable Securities unless the Company has first excluded
all
outstanding securities, the investors of which are not contractually entitled
to
inclusion of such securities in such Registration Statement or are not
contractually entitled to pro rata inclusion with the Registrable Securities;
and provided, further, however, that, after giving effect to the immediately
preceding proviso, any exclusion of Registrable Securities shall be made pro
rata with holders of other securities having the right to include such
securities in the Registration Statement. No Registrable Securities excluded
from the underwriting by reason of this Section 2.2(b) shall be included in
such
Registration Statement.
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3.1
Registration
Procedures.
If and
whenever the Company is required by the provisions of Sections 2.1 or 2.2 to
effect the registration of Registrable Securities under the Securities Act,
the
Company will:
(a)
use
its
best efforts to cause such a Registration Statement to become and remain
effective for a period of two (2) years; provided, however, that any
Registration Statement filed pursuant to Section 2.2 may be kept effective
for
such lesser period of time until which all Registrable Securities included
thereunder are freely saleable (without restriction, except with regard to
Registrable Securities held by persons deemed to be "affiliates" of the Company)
or have been disposed of pursuant to a registration statement or all transfer
restrictions or legends have otherwise been removed;
(b)
prepare
and file with the SEC such amendments to such Registration Statement and
supplements to the prospectus contained therein as may be necessary to keep
such
Registration Statement effective for the period of time described in paragraph
(a) above;
(c)
furnish
to the Investors participating in such registration such reasonable number
of
copies of such Registration Statement, preliminary prospectus, final prospectus
and such other documents as such underwriters or selling shareholders may
reasonably request in order to facilitate the public offering of such
securities;
(d)
use
its
best efforts to register or qualify the securities covered by the Registration
Statement under such state securities or blue sky laws of such jurisdictions
as
such participating Investors may reasonably request in writing within twenty
(20) days following the original filing of such Registration Statement, except
that the Company shall 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 in any jurisdiction wherein it is not so qualified;
(e)
in
the
event that a registration involves an underwritten offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter or such offering;
(f)
notify
the Investors participating in such registration, promptly, and in no event
later than two (2) business days after, the Registration Statement has become
effective or a supplement to any prospectus forming a part of the Registration
Statement has been filed;
(g)
notify
such Investors promptly of any request by the SEC for the amending or
supplementing the Registration Statement or prospectus or for additional
information;
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(i)
prepare
and file with the SEC, promptly upon the request of any such Investors, any
amendments or supplements to the Registration Statement or prospectus which,
in
the opinion of counsel for such Investors (and concurred in by counsel for
the
Company), is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable
Securities;
(j)
prepare
and promptly file with the SEC and promptly notify such Investors of the filing
of such amendment or supplement to the Registration Statement or 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 shall have 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 the light of the circumstances in which they
were made, not misleading;
(k)
advise
such Investors, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of the Registration Statement or the initiation or threatening
of
any proceeding for that purpose and promptly use its best efforts to prevent
the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued;
(l)
at
the
request of Investors of a majority of the Registrable Securities included in
the
Registration Statement, furnish to the underwriters or selling shareholders
on
the date that the Registrable Securities are delivered to underwriters for
sale
in connection with a registration pursuant to this Agreement (i) an opinion,
dated such date, of the counsel representing the Company for the purposes of
such registration, in form and substance as is customarily given to underwriters
in an underwritten public offering, addressed
to
the
underwriters and (ii) a letter dated such date, from the independent certified
accountants of the Company, in form an substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters;
(m)
make
available for inspection by any underwriters participating in an offering
covering Registrable Securities, and the counsel, accountants or other agents
retained by any such underwriter, all pertinent financial and other records,
corporate documents, and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such underwriters in connection with such offering;
(n)
to
the
extent the Registration Statement is not filed on Form SB-2, convert such
Registration Statement to Form SB-2 as soon as reasonably practicable following
the Company becoming eligible to register securities on Form SB-2;
5
(o)
if
the
Common Stock is then listed on a national securities exchange, cause the
Registrable Securities to be listed on such exchange, or if reported on Nasdaq,
to be reported on Nasdaq;
(p)
provide
a
transfer agent and registrar, which may be a single entity, for the Registrable
Securities not later than the effective date of the Registration Statement
in
which Registrable Securities are included; and
(q)
comply
with all applicable rules and regulations of the Commission and make generally
available to its security holders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder no later than
forty five (45) days after the end of any twelve (12) month period (or ninety
(90) days after the end of any twelve (12) month period if such period is a
fiscal year) commencing on the first day of the first fiscal quarter of the
Company, after the effective date of the Shelf Registration Statement, which
statements shall cover said twelve (12) month period.
3.2
Expenses.
With
respect to each inclusion of Registrable Securities in a Registration Statement
pursuant to Sections 2.1 and 2.2 hereof, the fees, costs and expenses of
registration to be borne by the Company shall include, all registration, filing,
and NASD fees; printing expenses, fees and disbursements of counsel and
accountants for the Company; 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 and qualified. Fees
and
disbursements of counsel and accountants for the selling security Investors
shall be borne by the selling security Investors, and security Investors
participating in such registration shall bear their pro rata share of the
underwriting discounts and commissions and transfer taxes. If NASD Rule 2710
or
any similar rule requires any broker-dealer to make a filing prior to executing
a sale of Registrable Securities, the Company shall make an Issuer Filing with
the NASD Corporate Financing Department pursuant to NASD Rule 2710 and respond
within five (5) business days to any comments received from the NASD in
connection therewith.
4. Certain
Obligations of Investors
(a)
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of (i) any event of the kind described in 3.1(g), 3.1(h), 3.1(i), 3.1(j) or
3.1(k) hereof, or (ii) a determination by the Company's Board of Directors
that
it is advisable to suspend use of the prospectus for a discrete period of time
due to pending corporate developments such as negotiation of a material
transaction which the Company, in its sole discretion after consultation with
legal counsel, determines it would be obligated to disclose in the Registration
Statement, which disclosure the Company believes would be premature or otherwise
inadvisable at such time or would have a material adverse effect on the Company
and its stockholders, such Holder will forthwith discontinue disposition of
such
Registrable Securities covered by the Registration Statement or prospectus
until
such Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.1 hereof, or until such Holder is advised in writing
by the Company that the use of the applicable prospectus may be resumed, and
has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such prospectus. The period of
time
in which the use of a prospectus or Shelf Registration Statement is so suspended
shall be referred to as a "BLACK-OUT PERIOD." The Company agrees to so advise
such Holder promptly of the commencement and termination of any such Black-Out
Period, and the Holder agrees to keep the fact of such Black-Out Period
confidential. The Company shall not impose a Black-Out Period under this Section
4 for more than thirty (30) consecutive days and not more than twice in any
given twelve (12) month period; provided, that at least ninety (90) days must
pass between Black-Out Periods. Notwithstanding the foregoing, the Company
may
suspend the effectiveness of any Registration Statement if the SEC rules and
regulations prohibit the Company from maintaining the effectiveness of a Shelf
Registration because its financial statements are stale at a time when its
fiscal year has ended or it has made an acquisition reportable under Item 2
of
Form 8-K or any other similar situation until the earliest time in which the
SEC
would allow the Company to re-effect a Registration Statement (provided that
the
Company shall use its reasonable best efforts to cure any such situation as
soon
as possible so that the Registration Statement can be made effective at the
earliest possible time). The Company shall not effect a Black-Out Period unless
the Company also institutes such Black-Out Period against sales under any
Registration Statements on Form S-8 or any other registration statement that
the
Company has on file with the SEC at such time. Notwithstanding the foregoing,
the Company undertakes and covenants that until the first to occur of (i) the
end of two hundred and seventy (270) days following the Closing of the Private
Placement Offering, or (ii) the date that all the Shares have been resold
pursuant to a registration statement or Rule 144, the Company will not take
any
action, including, without limitation, entering into any acquisition, share
exchange or sale or other transaction that could have the effect of delaying
the
effectiveness of any pending Registration Statement, requiring a post-effective
amendment to be filed or causing a post-effective amendment to a Registration
Statement to not be declared effective or for a Holder not to be able to effect
sales for a period of fifteen (15) or more days.
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(b)
In
connection with the registration of the Registrable Securities, each of the
Investors shall have the following obligations:
(i)
It
shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to each Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended methods of disposition of such securities
as shall be reasonably required to effect the registration of the Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. At least fifteen (15) days prior to
the
first anticipated filing date of the Registration Statement, the Company shall
notify each Holder of the information the Company requires from each such Holder
(the "Requested Information") if it elects to have any of his Registrable
Securities included in the Registration Statement. If within seven (7) days
of
the filing date the Company has not received the Requested Information from
a
Holder (a "Non-Responsive Holder"), then the Company may file the Registration
Statement without including Registrable Securities of such Non-Responsive
Holder.
(ii)
Each
Holder participating in an underwritten offering agrees to cooperate with the
Company in connection with the preparation and filing of any Registration
Statement hereunder, unless each Holder has notified the Company in writing
of
its election to exclude all of its Registrable Securities from the Registration
Statement.
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(iii)
In
the
event Investors holding a majority in interest of the Registrable Securities
being sold pursuant to the Registration Statement select underwriters for the
offering, each Holder agrees to enter into and perform its obligations under
an
underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations and market
stand-off obligations, with the managing underwriter of such offering and to
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of the Registrable Securities being sold, unless
such
Holder has notified the Company in writing of its election to exclude all of
his
Registrable Securities from the Registration Statement.
5.1
Indemnification
by the Company.
To the
extent permitted by law, the Company will indemnify and hold harmless each
holder of Registrable Securities which are included in a Registration Statement
pursuant to the provisions of Sections 2.1 and 2.2 hereof, such Holder's
directors and officers, 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 such holder and each such underwriter and controlling person with
respect to, any and all loss, damage, liability, cost and expense to which
such
holder or any such underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, damages, liabilities,
costs or expenses are caused by any untrue statement or alleged untrue statement
of any material fact contained in a Registration Statement, any 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, damage, liability, cost or expenses arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with written information furnished by such
holder, such underwriter or such controlling person specifically for use in
the
preparation thereof; provided, however, that the indemnity agreement set forth
herein shall not apply (i) to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
prior consent of the Company or (ii) with respect to any preliminary prospectus,
if the untrue statement or omission of material fact contained in such
preliminary prospectus was corrected in an amended prospectus and the Company
has provided notice of such amendment to each Investor pursuant to Section
3.1
hereof.
5.2
Indemnification
by the Investors.
Each
holder of Registrable Securities included in a registration pursuant to the
provisions of Sections 2.1 and 2.2 hereof will indemnify and hold harmless
the
Company, its directors and officers, any controlling person and any underwriter
from and against, and will reimburse the Company, its directors and officers,
any controlling person and any underwriter with respect to, any and all loss,
damage, liability, cost or expense to which the Company or any controlling
person and/or any underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, damages, liabilities, costs or expenses
are
caused by any untrue statement or alleged untrue statement of any material
fact
contained in the Registration Statement, any 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, 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
strict conformity with written information furnished by or on behalf of such
Holder specifically for use in the preparation thereof and provided further,
that the maximum amount that may be recovered from any holder shall be limited
to the net amount of proceeds received by such Holder from the sale of the
Registrable Securities.
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5.3
Indemnification
Procedure.
Promptly after receipt by an indemnified party under this Section 5 of a notice
of the commencement of any action (including any governmental action) such
indemnified party will, if a claim in respect thereof is to be made against
any
indemnifying party hereunder, deliver to the indemnifying party a written notice
of the commencement thereof. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Section 5 only to the extent prejudicial to its ability to
defend such action, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
an
indemnified party otherwise than under this Agreement. The indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory
to
the parties; provided, however, that an indemnified party shall have the right
to retain its own counsel, with the reasonable fees and expenses to be paid
by
the indemnifying party, if in the reasonable determination of counsel for the
indemnifying party, representation of such indemnified party by the counsel
obtained by the indemnifying party would be inappropriate due to actual or
potential conflicting interests between such indemnified party and any other
party represented by such counsel in such proceeding. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party pursuant to the provisions of paragraph 5.1 or 5.2 above for any legal
or
other expense subsequently incurred by such indemnified party in connection
with
the defense thereof other than reasonable costs of investigation, unless (i)
the
indemnified party shall have employed counsel in accordance with the provisions
of the preceding sentence, (ii) the indemnifying party shall not have employed
counsel reasonably 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 in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
5.4
Contribution.
To the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 5 hereof
to
the extent permitted by law, provided that (i) no contribution shall be made
under circumstances where the maker would not have been liable for
indemnification pursuant to the provisions of Section 5 hereof, (ii) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
such fraudulent misrepresentation, and (iii) contribution by any seller of
Registrable Securities shall be limited to the net amount of proceeds received
by such seller from the sale of such Registrable Securities.
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6.1
Assignable
Rights.
The
rights with respect to the Registrable Securities under this Agreement shall,
in
addition to being for the benefit of the parties hereto, be for the benefit
of
and enforceable by a transferee of the Registrable Securities, provided that
the
Company is furnished with written notice of the name and address of such
transferee or assignee with respect to which such registration rights are being
assigned, such notice provides a written agreement for the transferee or
assignee to be bound by the terms and provisions of this Agreement and the
Purchase Agreement and such assignment or transfer is in accordance with and
permitted by applicable Federal and state securities laws and the terms of
the
Purchase Agreement, including Section 2.1(f) thereof. The obligations of the
Company contained in this Agreement shall be binding upon any successor to
the
Company and continue to be in effect with respect to any securities issued
by
any successor to the Company in substitution or exchange for any Registrable
Securities.
6.2
Reports
Under Exchange Act.
With a
view to making available to the Investors of Registrable Securities the benefits
of Rule 144 and any other rule or regulation of the SEC that may at any time
permit the Investors of the Registrable Securities to sell any of the
Registrable Securities to the public without registration, the Company agrees
to
apply its best efforts to:
(a)
make
and
keep public information available, as those terms are understood and defined
in
Rule 144, at all times;
(b)
file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act;
(c)
furnish
to each holder of Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the reporting requirements
of
Rule 144, the Securities Act and the Exchange Act, (ii) 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) such other information as may be
reasonably requested in availing the Investors of any Registrable Securities
of
any rule or regulation of the SEC which permits the
selling
of any such securities without registration; and
(d)
direct
its counsel to issue an appropriate legal opinion instructing the Company's
transfer agent to remove the legend with respect to such Registrable Securities,
subject to Investor providing any documentation reasonably requested by the
Company or its counsel for review in connection with such request.
10
7. Miscellaneous.
(a) Amendments
and Waivers.
This
Agreement may be amended only by a writing signed by the Company and the
Required Investors. The Company may take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent to such amendment, action or omission
to
act, of the Required Investors.
(b) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made as set forth in Section 9.4 of the Purchase Agreement.
(c) Benefits
of the Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(d) Counterparts;
Faxes.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may also be executed via facsimile, which shall
be
deemed an original.
(e) Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(f) Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law
which
renders any provisions hereof prohibited or unenforceable in any
respect.
(g) Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
(h) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
11
(i) Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
This
Agreement shall be governed by, and construed in accordance with the laws of
the
State of Nevada without regard to the choice of law principles thereof. Each
of
the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of Nevada 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.
12
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
| The Company: |
Index Oil & Gas Inc.
By:_________________________________________
Xxxxxx
Xxxx
Chief
Executive Officer
|
| The Investors: |
____________________________________________
Print Name of Holder
|
|
By:
_________________________________________
Name:
Title:
|
