REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of NOVEMBER 30, 2007, by and between Xxxxx
Mining, Inc., a Delaware corporation, (the "Company") as more fully described in
the Confidential Private Placement Memorandum, originally dated September 28,
2007 as supplemented (the "Memorandum"), and the purchasers of the Company's
Common Stock identified in EXHIBIT A attached hereto (each, "STOCKHOLDER," and
collectively, the "STOCKHOLDERS"), pursuant to their separate Subscription
Agreements made with the Company (collectively, the "SUBSCRIPTION AGREEMENTS").
In order to induce the Purchasers to enter into the Subscription Agreements, the
Company has agreed to provide to the Purchasers and their direct and indirect
transferees and assigns the registration rights set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. REGISTRATION RIGHTS.
(a) GRANT OF REGISTRATION RIGHTS. The Company agrees to use its best
efforts to file a Registration Statement ("Registration Statement") under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), that will register
all of the shares of the Company's common stock issued to the Stockholder by the
Company through the Offering described in the Memorandum (the "REGISTRABLE
SECURITIES") within 60 days following the Closing of the Offering ("Closing
Date"). The Company further agrees to use its reasonable best efforts to have
the Registration Statement declared effective within 180 days of its initial
filing date.
(b) ADDITIONAL REGISTRATION STATEMENTS. In the event the Company is
unable for any reason to register all of the Registrable Securities, including
but not limited to an SEC interpretation of Rule 415 as to the amount of
securities eligible in any one offering, the Company agrees to file a subsequent
registration statement within a reasonable time frame and delay, and as many
registration statements as are necessary to fulfill and accomplish the
registration rights granted to Stockholder as contained in section 1(a).
(c) MAINTENANCE OF REGISTRATION STATEMENT. The Company will maintain
the effectiveness of the Registration Statement filed hereunder from its
effective date through and until 24 months after the Closing Date, unless all
securities registered under the Registration Statement have been sold or are
otherwise able to be sold pursuant to Rule 144, at which time the Company will
no longer be required to maintain the Registration Statement further.
2. REGISTRATION PROCEDURES. The Company shall use its best efforts to
effectuate the registration and the sale of such Registrable Securities, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use all commercially reasonable
efforts to cause such Registration Statement to become effective;
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(b) notify the Stockholder of the effectiveness of the Registration
Statement filed hereunder and prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective;
(c) furnish to the Stockholder such number of copies of the
Registration Statement, each amendment and supplement thereto, the prospectus
included in the Registration Statement (including each preliminary prospectus)
and such other documents as the Stockholder may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by the
Stockholder; (d) notify the Stockholder, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
the Stockholder, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(e) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such Registration Statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
3. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and disbursements of custodians, fees and disbursements of counsel for the
Company and all independent certified public accountants (all such expenses
being herein called "REGISTRATION EXPENSES") shall be borne by the Company. The
Stockholder will pay any commissions or other fees payable to brokers or dealers
in connection with any sale of the Registrable Securities.
4. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
the Stockholder, its Shareholders, members, managers, officers and directors and
each person who controls the Stockholder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as
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the same are caused by or contained in any information furnished to the Company
by the Stockholder.
(b) In connection with any Registration Statement in which the
Stockholder is participating, the Stockholder shall furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any such Registration Statement or prospectus and, to the
extent permitted by law, shall indemnify the Company, its directors and officers
and each person who controls the Company (within the meaning of the Securities
Act) against any losses, claims, damages, liabilities and expenses resulting
from any untrue or alleged untrue statement of material fact contained in the
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by the
Stockholder.
(c) Any person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld, conditioned or delayed). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
5. MISCELLANEOUS.
(a) This Agreement and the Subscription Agreement between the Company
and Stockholder embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
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(b) Any person having rights under any provision of this Agreement
shall be entitled to enforce such rights specifically to recover damages caused
by reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
(c) The provisions of this Agreement may be amended or waived only
upon the prior written consent of the Company and the Stockholder.
(d) All covenants and agreements in this Agreement by or on behalf of
any of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
Notwithstanding the foregoing, however, this Agreement is not assignable without
the prior written consent of both parties hereto.
(e) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(f) This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
(g) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(h) The corporate law of Nevada shall govern all issues and questions
concerning the relative rights of the Company and its shareholders. All other
issues and questions concerning the construction, validity, interpretation and
enforcement of this Agreement shall be governed by, and construed in accordance
with, the laws of the Nevada, without giving effect to any choice of law or
conflict of law rules or provisions (whether of Nevada law or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the Nevada.
(i) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the following addresses:
XXXXX MINING, INC.
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0000-X Xxx Xx Xxxxx
Xx. Xxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0
Attention: Xxxxx Xxxxx (CEO)
With copies to:
Cane Xxxxx LLP
0000 X. Xxxx Xxxxxxx, Xx.
Xxx Xxxxx, XX 00000
Attention: Xxx Xxxxxxx
Stockholder:
At the address provided below
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXX MINING, INC.
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Title: CEO
STOCKHOLDER
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Spectra Capital Management, LLC
Title: Xxxxxxx X. Xxxxxx
Managing Member
Address:595 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000
