REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
January 12, 2000, by and between Hyperdynamics Corporation, a Delaware
corporation (the "Company"), the subscribers (hereinafter referred to as
"Subscribers" OR "INVESTORS") and the Placement Agent (as defined in the
Subscription Agreement) to the Company's offering ("Offering") of up to Five
Thousand (5,000) shares of Series A Convertible Preferred Stock (the "Preferred
Stock"), warrants to purchase up to 500,000 shares of the Company's Common
Stock, as well as the warrants to purchase shares of Common Stock issued to the
Placement Agent (collectively referred to as the "Warrants") pursuant to the
Regulation 1) Securities Subscription Agreements between the Company and the
Subscribers (the "Subscription Agreements"), the terms of which are incorporated
herein and made a part hereof.
1. DEFINITIONS. For purposes of this Agreement:
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(a) The terms "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933 (the "Act") and
pursuant to Rule 411 under the Act or any successor rule, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) For purposes of the Required Registration under Section 2
hereof, the term "Registrable Securities" means
(i) the shares of the Company's Common Stock into which the
shares of Series A Preferred Stock (the "Preferred Stock") sold in the Offering
(as defined in the Subscription Agreement) may be converted;
(ii) the Common Stock to be issued upon exercise of the
Warrants issued in the Offering;
(iii) the Common Stock issued to, and the Common Stock to be
issued upon exercise of the Warrants issued to, the Placement Agent in the
Offering; and
(iv) any capital stock issued in replacement of, in exchange
for or otherwise in respect of such Common Stock.
(c) The number of shares of "Registrable Securities then
outstanding" shall include the number of shares of Common Stock which have been
issued or are issuable upon conversion of the Preferred Stock and the exercise
of the Warrants at the time of such determination;
(d) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any permitted assignee thereof;
(e) The terms "Offering" and "Closing" shall have the meanings
ascribed to them in the Subscription Agreement.
2. REQUIRED REGISTRATION.
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(a) Within forty-five (45) days after the Closing of the Offering,
the Company shall file a registration statement ("Registration Statement") on
Form S-3 (or other suitable form), with the SEC covering the resale of all
shares of Registrable Securities then outstanding.
(b) If the Registration Statement is not filed with the SEC within
forty-five (45) days after the Closing of the Offering, the Company shall pay
each Investor an amount equal to three percent (3%) per month of the aggregate
amount of Preferred Stock purchased by such Investor in the Offering, compounded
monthly and accruing daily, until the Registration Statement is filed with the
SEC, payable in cash or in common stock at the sole discretion of the Holder,
which common stock shall also be deemed "Registrable Securities" for the purpose
of this Agreement.
(c) The Company shall use its best efforts to have the
Registration Statement declared effective by the SEC.
(d) If the Registration Statement is not declared effective by the
SEC, or otherwise becomes effective within the meaning of the Rules and
regulations of the SEC. within one hundred forty-five (145) calendar days after
the Closing of the Offering, then the Company shall on the one- hundred
forty-sixth day after the Closing of the Offering pay each Investor an amount
equal to two percent (2%) of the aggregate amount of Preferred Stock purchased
by such Investor in the Offering, payable in cash or in common stock at the sole
discretion of the Holder, which common stock shall also be deemed "Registrable
Securities" for the purpose of this Agreement. On every thirtieth calendar day
thereafter until the Registration Statement becomes or is declared effective,
the Company shall pay each Investor an additional amount equal to two percent
(2%) of the aggregate amount of Preferred Stock purchased by such Investor in
the Offering, payable in cash or in common stock at the sole discretion of the
Holder, which common stock shall also be deemed "Registrable Securities" for the
purpose of this Agreement. Notwithstanding anything to the contrary in this
Agreement, no additional payments shall become due under this Section 2(d) after
the three-hundred sixty-fifth (365~) day after the Closing of the Offering.
3. LIMITATION ON OBLIGATIONS TO REGISTER. Notwithstanding anything
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to the contrary herein, the Company shall have the right (i) to defer the
initial filing or request for acceleration of effectiveness of the Registration
Statement or (ii) after effectiveness, to suspend effectiveness of such
registration statement, if, in the good faith judgment of the board of directors
of the Company and upon the advice of counsel to the Company, such delay in
filing or requesting acceleration of effectiveness or such suspension of
effectiveness is necessary in light of (i) the requirement by any underwriter in
a public offering by the Company that such Registration Statement be delayed or
suspended or (ii) the existence of material non-public information (financial or
otherwise) concerning the Company, disclosure of which at the time is not, in
the opinion of the board of directors of the Company upon the advice of counsel,
(A) otherwise required and (B) in the best interests of the Company.
4. OBLIGATIONS TO INCREASE THE NUMBER OF AVAILABLE SHARES. In the
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event that the number of shares available under a registration statement
filed pursuant to Section 2 is insufficient to cover all of the Registrable
Securities then outstanding, the Company shall amend that registration
statement, or file a new registration statement, or both, so as to cover all
shares of Registrable Securities then outstanding. The Company shall effect
such amendment or new registration within sixty (60) days of the date the
registration statement filed under Section 2 is insufficient to cover all the
shares of Registrable Securities then outstanding. Any Registration Statement
filed hereunder shall, to the extent permissible by the Rules of the Securities
and Exchange Commission ("SEC"), state that, in accordance with Rule 416
under the Act, such Registration Statement also covers such indeterminate
numbers of additional shares of Common Stock as may become issuable upon
conversion of the Preferred Stock or exercise of the Warrants to prevent
dilution resulting from stock changes or by reason of changes in the conversion
price in accordance with the terms thereof.
5. OBLIGATIONS OF THE COMPANY. Whenever required under this
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Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC such exhibits, amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(b) With respect to any Registration Statement filed pursuant to
this Agreement, keep such registration statement effective until the earlier of
(i) the Holders of Registrable Securities covered by such registration statement
have completed the distribution described in the registration statement; or (ii)
twenty-four (24) months after the effective date of registration.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders of
the Registrable Securities covered by such registration statement, provided that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
(g) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, (1) an opinion, dated such date, of the outside
counsel of recognized standing (or reasonably acceptable to Holder) 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, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
(h) As promptly as practicable after becoming aware of such event,
notify each Investor of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and deliver a number of copies of such supplement or amendment to each
Investor as such Investor may reasonably request.
(i) Provide Holders with written notice of the date that a
registration statement registering the resale of the Registrable Securities is
declared effective by the SEC.
(j) Provide Holders and their representatives the opportunity to
conduct a reasonable due diligence inquiry of Company's pertinent financial and
other records and make available its officers, directors and employees for
questions regarding such information as it relates to information contained in
the registration statement subject to all information received by the Holders
and their representatives being kept confidential.
(k) Provide Holders and their representatives the opportunity to
review the registration statement and all amendments thereto a reasonable period
of time prior to their filing with the SEC.
6. FURNISH INFORMATION. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Agreement with
regard to each selling Holder that such selling Holders shall furnish to the
Company such information regarding themselves, the Registrable Securities held
to them, and the intended method of disposition of such securities as shall be
reasonably required to effect
the registration of their Registrable Securities or to determine that
registration is not required pursuant to Rule 144 or other applicable provision
of the Act.
7. EXPENSES OF REQUIRED REGISTRATION. The Company shall bear and
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pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registration
pursuant to Section 2 for each Holder, including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto but excluding underwriting discounts and
commissions and fees and expenses of counsel to the selling Holders relating to
Registrable Securities.
8. INDEMNIFICATION. In the event any Registrable Securities are
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included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers and directors of each Holder, any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
by the Company of the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, the 1934 Act or any state securities law;
and the Company will reimburse each such Holder, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, officer, director, underwriter or
controlling person.
(b) To the extent permitted by law, each selling Holder, severally
and not jointly, will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Act, any
underwriter and any other Holder selling securities in such registration
statement or any of its directors or officers or any person who controls such
Holder, against any losses, claims, damages, or liabilities (joint or several)
to which the Company or any such director, officer, controlling person, or
underwriter or controlling person, or other such Holder or director, officer or
controlling person may become subject, under the Act, the 1934 Act or other
federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company and any such
director, officer, controlling person, underwriter or controlling person, other
Holder, officer, director, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
8(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
in no event shall any indemnity under this subsection 8(b) exceed the net
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the reasonably incurred fees and
expenses of one such counsel to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained 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. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
8, but the omission so to deliver written notice to the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 8.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each holder of Registrable
Securities agree to contribute to the aggregate claims, losses, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of the holders of Registrable Securities may be subject
in such proportion as is appropriate to reflect the relative fault of the
Company and the holders in connection with the statements or omissions which
resulted in such Losses; provided, however, that in no case shall any holder be
responsible for any amount in excess of the net purchase price of securities
sold by it under the registration statement. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or by the holders. The Company and the
holders agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of the Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls a holder of Registrable Securities within the meaning of either the
Act or the 1934 Act and each director, officer, partner, employee and agent of a
holder shall have the same rights to contribution as such holder, and each
person who controls the Company within the meaning of either the Act or the 1934
Act and each director of the Company, and each officer of the Company who has
signed the registration statement, shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The obligations of the Company and Holders under this Section
8 shall survive the redemption and conversion, if any, of the Preferred Stock,
the completion of any offering of Registrable Securities in a registration
statement under this Agreement, and otherwise.
9. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration, the
Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of SEC
Rule 144, the Act and the 1934 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 any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
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Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities provided that the amendment treats all
Holders equally. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder, each future Holder, and the
Company.
11. NOTICES. All notices required or permitted under this
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Agreement shall be made in writing signed by the party making the same, shall
specify the section under this Agreement pursuant to which it is given, and
shall be addressed if to (i) the Company: Hyperdynamics Corporation, Attention
Chief Financial Officer, 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000,
Telephone No. (000) 000-0000, Facsimile No. (000) 000-0000 and (ii) the Holders
at their respective last address as the party shall have furnished in writing as
a new address to be entered on such register. Any notice, except as otherwise
provided in this Agreement, shall be made by fax and shall be deemed given at
the time of transmission of the fax.
12. TERMINATION. This Agreement shall terminate on the earlier to
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occur of (a) the date that is three (3) years from the date of this Agreement or
(b) the date the distribution of all Registrable Securities described in any
registration statement filed pursuant to this Agreement is completed; but
without prejudice to (i) the parties' rights and obligations arising from
breaches of this Agreement occurring prior to such termination (ii) other
indemnification obligations under this Agreement or (iii) the Company's
obligation to maintain the effectiveness of a registration statement filed prior
thereto in accordance with the terms hereof, and to fulfill its obligation
hereunder in respect thereof until it is no longer required to maintain the
effectiveness thereof.
13. ASSIGNMENT. No assignment, transfer or delegation, whether by
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operation of law or otherwise, of any rights or obligations under this Agreement
by the Company or any Holder, respectively, shall be made without the prior
written consent of the majority in interest of the Holders or the Company,
respectively; provided that the rights of a Holder may be transferred to a
subsequent holder of the Holder's Registrable Securities (provided such
transferee shall provide to the Company, a writing executed by such transferee
agreeing to be bound as a Holder by the terms of this Agreement); and provided
further that the Company may transfer its rights and obligations under this
Agreement to a purchaser of all or a substantial portion of its business if the
obligations of the Company under this Agreement are assumed in connection with
such transfer, either by merger or other operation of law (which may include
without limitation a transaction whereby the Registrable Shares are converted
into securities of the successor in interest) or by specific assumption executed
by the transferee.
14. MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware without giving
effect to conflict of laws.
(b) Successors and Assigns. Except as otherwise provided herein,
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the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
(c) Delays or Omissions. No delay or omission to exercise any
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right, power or remedy accruing to any holder of any Registrable Shares, upon
any breach or default of the Company under this Agreement, shall impair any such
right, power or remedy of such holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereunder occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any holder of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions of
conditions of this Agreement, must be 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 holder, shall be
cumulative and not alternative.
(d) Counterparts. This Agreement may be executed in any number of
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counterparts, each of which may be executed by less than all of the Investors,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
(e) Severability. In the case any provision of this Agreement
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shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
(CONTINUED ON FOLLOWING PAGE)
The foregoing Registration Rights Agreement is hereby executed as
of the date first above written.
HYPERDYNAMICS CORPORATION
By:_/s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President
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INVESTOR(S)
_____________________
Investor's Name
By:__________________
(Signature)
Name:________________
Title:_________________
Address:
______________________
______________________
______________________
The foregoing Registration Rights Agreement is hereby executed as of
the date first above written.
HYPERDYNAMICS CORPORATION
By: ______________________________
Name:______________________________
Title: ___________________________
INVESTOR(S)
Cache Capital USA L.P.
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Investor's Name
By:/s/ Xxxxxx X. Xxxxxxx
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(Signature)
Name: Xxxxxx X. Xxxxxxx
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Title: Investment Manager
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Address:
0000 Xxxxxxxxx Xx., Xxxxx 000
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Xxxxxxx, XX 00000
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Attn: Xxxx Xxxxxx
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PLACEMENT AGENT
X.X. Xxxxx Securities, Inc.
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Agent's Name
By: Xxxxx X. Xxxxxxx
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(Signature)
Name: Xxxxx X. Xxxxxxx
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Title: Senior Vice President
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