REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of April
21, 1998, by and among VAALCO Energy, Inc., a Delaware corporation (the
"Company"), Xxxxxxxxx & Company, Inc. ("Jefferies") and the individuals and
entities listed on EXHIBIT A hereto (collectively, the "Stockholders");
W I T N E S S E T H:
WHEREAS, the Company and each of the Stockholders have entered into a
Subscription Agreement (the "Subscription Agreement") relating to the purchase
by Stockholders of an aggregate of 1,360,000 shares (the "Shares") of Common
Stock, par value $.10 per share ("Common Stock"), of the Company;
WHEREAS, in order to induce the Stockholders to enter into the
Subscription Agreement, the Company has agreed to grant certain registration
rights to the Stockholders with respect to the Shares;
WHEREAS, in connection with the private placement of the Shares with the
Stockholders, the Company has granted to Jefferies a warrant to purchase 100,000
shares of Common Stock (the "Warrant Shares") at an exercise price of $2.00 per
share; and
WHEREAS, the Company has agreed to grant certain registration rights to
Jefferies with respect to the Warrant Shares;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
As used herein, the following terms have the indicated meanings, unless
the context otherwise requires:
"Act" means the Securities Act of 1933, as amended.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Stockholder who owns Registrable Securities or any
permitted transferee thereof who owns Registrable Securities.
"Registrable Securities" means the Shares, the Warrant Shares and any
other securities
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issued or issuable by the Company with respect to the Shares or the Warrant
Shares by way of a stock dividend or other distribution or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or reorganization. Any Registrable Securities will cease to be such when (i) a
registration statement covering such Registrable Securities has been declared
effective by the Securities and Exchange Commission and such Registrable
Securities have been disposed of pursuant to such effective registration
statement, (ii) such Registrable Securities may be distributed to the public
pursuant to Rule 144 (or any similar provision then in force) under the Act or
(iii) the Company has delivered a new certificate or other evidence of ownership
for such Registrable Securities not bearing the legend required pursuant to the
Subscription Agreement or the Warrant to Purchase Common Stock regarding the
Warrant Shares and such Registrable Securities may be resold to the public
without restriction under the Act in accordance with Rule 144(k).
"Selling Holder" means a Stockholder or permitted transferee thereof who
is selling Registrable Securities pursuant to a registration statement.
2. PIGGY-BACK REGISTRATION.
(a) If the Company proposes to file a registration statement under the
Act with respect to an offering by the Company of any class of equity security
for cash, including any security convertible into or exchangeable for any equity
securities (other than (i) a registration statement on Form S-4 or S-8 (or any
substitute form for comparable purposes that may be adopted by the Commission),
(ii) a registration statement filed in connection with an exchange offer or an
offering of securities solely to the Company's existing security holders, (iii)
in connection with the registration statement that is on a form pursuant to
which an offering of the Registrable Securities cannot be registered or (iv)
pursuant to Article 3 hereof), then the Company shall in each case give written
notice of such proposed filing to the Holders at least 30 days before the
anticipated filing date, and such notice shall offer the Holders the opportunity
to register such number of Registrable Securities as each such Holder may
request. Upon the written request of any Holder received by the Company within
15 business days after the date of the Company's delivery of its notice to the
Holders of its intention to file such a registration statement, the Company
shall, subject to the conditions and in accordance with the procedures set forth
herein, use its best efforts to cause the managing underwriter or underwriters,
if any, of a proposed underwritten offering to permit the Registrable Securities
requested by the Holder to be included in the registration statement for such
offering on the same terms and conditions as any similar securities of the
Company included therein (a "Piggy-Back Registration"). Notwithstanding the
foregoing, if the managing underwriter or underwriters of an offering indicates
in writing to the Holders who have requested that their Registrable Shares be
included in such offering, its reasonable belief that because of the size of the
offering intended to be made, the inclusion of the Registrable Securities
requested to be included might reasonably be expected to jeopardize the success
of the offering of the securities of the Company to be offered and sold by the
Company for its own account, then the amount of securities to be offered for the
account of the Holders shall be reduced on a pro rata basis with all sellers
(whether or not such sellers are
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Holders) other than the Company to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount recommended
by such managing underwriter or underwriters. The Company will bear all
Registration Expenses (as hereinafter defined) in connection with a Piggy-Back
Registration.
(b) The Company may, without the consent of any Selling Holder, withdraw
any registration statement prior to the effectiveness thereof and abandon any
proposed offering initiated by the Company, notwithstanding the request of a
Holder to participate therein in accordance with this Section 2, if the Company
determines that such action is in the best interests of the Company.
(c) Notwithstanding anything contained herein to the contrary, the
Company will have no obligation under this Section 2 to register any Registrable
Securities unless at least 20,000 shares (as adjusted for stock splits, stock
dividends or similar transaction) of Registrable Securities in the aggregate are
requested to be included in such offering.
3. DEMAND REGISTRATION RIGHTS.
(a) If the Holders of at least 30,000 shares (as adjusted for stock
splits, stock dividends or similar transaction) of the Registrable Securities
make a written request to the Company that the Company effect the registration
of such Registrable Securities under the Act, then the Company shall, within 15
days of the receipt of such request, give written notice of such request to all
other Holders, and such notice shall offer the Holders the opportunity to
register such number of Registrable Securities as each such Holder may request
(a "Demand Registration"). Upon the written request of Holders of at least
300,000 shares (as adjusted for stock splits, stock dividends or similar
transaction) of the Registrable Securities received by the Company within 15
business days after the date of the Company's delivery of its notice to the
Holders as described in this Section 3, the Company will, as promptly as
reasonably practicable prepare and file with the Commission a registration
statement ("DEMAND REGISTRATION STATEMENT") covering such proposed sale of all
such Registrable Shares requested to be so registered. The Company will bear all
Registration Expenses (as hereinafter defined) in connection with a Demand
Registration. The underwriter or underwriters for a requested registration shall
be selected by the consent of the holders of a majority (by number of shares) of
the Registrable Securities requested to be included in such registration and
shall be reasonably acceptable to the Company.
(b) Subject to paragraph (d) below, the Company will use its best
efforts to have the Demand Registration Statement declared effective by the
Commission as soon as practicable after the filing thereof and to maintain the
effectiveness thereof for 90 days (or until all Registrable Shares covered
thereby have been sold, if such sales are completed before the end of the 90-day
period).
(c) The Company shall only be required to provide three effective Demand
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Registrations hereunder.
(d) The Company will be entitled to postpone the filing of the Demand
Registration Statement, and to suspend sales under the Demand Registration
Statement, for: (i) an aggregate number of days not exceeding 120 days, if the
Company determines in its sole discretion that the Demand Registration Statement
or the offering covered thereby would interfere with or require public
disclosure of any financing, acquisition, corporate reorganization or other
transaction involving the Company or any of its subsidiaries; (ii) an aggregate
number of days not exceeding 180 days, if (A) a registration statement was filed
by the Company in connection with an underwritten public offering by the Company
of any securities within the 90 days preceding the date of the request or (B)
the Commission requires such postponement or suspension; PROVIDED HOWEVER, that
in computing the 90-day period for which the Company is required to maintain the
effectiveness of the Demand Registration Statement, the period of any such
suspension shall not be included. The Company shall give prompt written notice
to the Selling Holders of any such postponement or suspension and shall likewise
give prompt written notice to the Selling Holders of termination of such
postponement or suspension. The Selling Holders hereby agree to postpone the
sale of any Registrable Shares pursuant to the Demand Registration Statement
during any suspension of sales of the Common Stock thereunder by the Company.
4. RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE SECURITIES.
To the extent not inconsistent with applicable law, each Holder whose
Registrable Securities are included in a registration statement pursuant to
Section 2 or 3 agrees not to effect any public sale or distribution of the
security being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 under the Act, during the 90-day period
(or such shorter period as may be required by the Company or the managing
underwriter or underwriters with respect to any officer or director or
shareholder of the Company) beginning on the effective date of a registration
statement (except, in each case, as part of such registration), if and to the
extent requested by the Company in the case of a non-underwritten public
offering or if and to the extent requested by the managing underwriter or
underwriters in the case of an underwritten public offering.
5. REGISTRATION PROCEDURES.
Whenever the Holders have requested that any Registrable Securities be
included in a registration pursuant to Section 2 or 3 hereof, the Company shall
(unless such registration statement is not filed or is withdrawn) use its best
efforts to effect the registration and the sale of such Registrable Securities
as soon as reasonably practicable, and in connection with any such request, the
Company shall (unless such registration statement is not filed or is withdrawn):
(a) (i) prior to filing a registration statement or prospectus or any
amendments or supplements thereto, furnish to each Selling Holder
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copies of all such documents proposed to be filed, which documents will be
subject to the review of such counsel, (ii) furnish to each Selling Holder,
prior to filing a registration statement, copies of such registration statement
as proposed to be filed, and thereafter furnish to each Selling Holder such
number of copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus included
in such registration statement (including each preliminary prospectus) and such
other documents as any Selling Holder may reasonably require in order to
facilitate the disposition of the Registrable Securities owned by the Selling
Holder, and (iii) after the filing of the registration statement, promptly
notify each Selling Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by the Commission
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered;
(b) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
each Selling Holder reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable the Selling Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by the Selling Holder; PROVIDED, HOWEVER, that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (b), (ii)
subject itself to taxation in any such jurisdiction where it is not then so
subject or (iii) consent to general service of process in any such jurisdiction;
(c) use its best efforts to cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the Selling Holder thereof to consummate the disposition of such
Registrable Securities;
(d) notify the Selling Holder, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and promptly make available to the Selling
Holder any such supplement or amendment;
(e) enter into or arrange for the furnishing of customary agreements and
documents (including an underwriting agreement in customary form) and take such
other actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(f) make available for inspection by each Selling Holder, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by the
Selling Holder or underwriter (collectively, the
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"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement. Each Selling
Holder agrees that information obtained by it as a result of such inspections
that is material and deemed confidential shall not be used by it as the basis
for any market transactions in securities of the Company unless and until such
is made generally available to the public. The Selling Holder further agrees
that it will, upon learning that disclosure of such Records is sought in a court
of competent jurisdiction, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
(g) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of 12 months, beginning
within three months after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Act; and
(h) use its reasonable efforts to cause all such Registrable Securities
to be quoted on the Nasdaq Market System, if the Common Stock is then so quoted,
or to be listed on any securities exchange on which the Common Stock is then
listed.
The Company may require the Selling Holder as to which any registration
is being effected to furnish to the Company such information regarding the
Selling Holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing and such other
information as may be legally required in connection with such registration.
In no event shall the Company be required to amend any registration
statement filed pursuant to this Agreement after it has become effective or to
amend or supplement any prospectus to permit the continued disposition of shares
of Common Stock owned by a Selling Holder registered under any such registration
statement beyond the period during which the Company is required to maintain the
effectiveness thereof pursuant to the terms of this Agreement.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 5(d)
hereof, the Selling Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until the Selling Holder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5(d) hereof, and, if so directed
by the Company, the Selling Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in the Selling
Holder's possession, of the prospectus
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covering such Registrable Securities current at the time of receipt of such
notice. Each Selling Holder also agrees to notify the Company of any event
relating to the Selling Holder that occurs that would require the preparation of
a supplement or amendment to the prospectus so that such prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
As used herein, the term "Current Market Price" per share of Common
Stock or any other security at any date shall mean, on any date of determination
(a) the average of the daily closing sale price for the 10 trading days
immediately preceding such date if the security has been listed on the
New York Stock Exchange, the American Stock Exchange or other national exchange
or the Nasdaq National Market for at least 10 trading days prior to such date,
(b) if such security is not so listed or traded, the average of the daily
closing bid price for the 10 trading days immediately preceding such date if the
security has been quoted on a national over-the-counter market for at least 10
trading days, and (c) otherwise, the value of the security most recently
determined as of a date within the six months preceding such day by the
Company's Board of Directors.
6. 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 (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with the
listing of the securities to be registered on the Nasdaq Market System and all
securities exchanges on which similar securities issued by the Company are then
quoted or listed, and fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or comfort letters required by or incident to such performance),
securities act liability insurance (if the Company elects to obtain such
insurance), the fees and expenses of any special experts retained by the Company
in connection with such registration, and fees and expenses of other persons
retained by the Company, in connection with each registration hereunder (but not
including any underwriting discounts or commissions attributable to the sale of
Registrable Securities (which are hereinafter referred to as "Selling
Expenses")) and the reasonable fees and expenses of one counsel for the Selling
Holders, (collectively, the "Registration Expenses") will be borne by the
Company in the event of a registration of Registrable Securities pursuant to
Section 2 or 3 hereof. All Selling Expenses shall be borne solely by the Selling
Holders.
7. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. To the extent permitted by
applicable law, the Company agrees to indemnify and hold harmless each Selling
Holder, its officers, directors,
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partners and agents and each person, if any, who controls a Selling Holder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages (whether in contract, tort
or otherwise), liabilities and expenses (including reasonable costs of
investigation) whatsoever (as incurred or suffered) arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable Securities
or in any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of, or are based upon, any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Company by such Selling Holder or on behalf of such Selling
Holder expressly for use therein and PROVIDED, that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, the indemnity agreement contained in this paragraph
shall not apply to the extent that any such loss, claim, damage, liability or
expense results from the fact that a current copy of the prospectus was not sent
or given to the person asserting any such loss, claim, damage, liability or
expense at or prior to the written confirmation of the sale of the Registrable
Securities concerned to such person if it is determined that the Company had
previously provided such Selling Holder with such current copy of the
prospectus, it was the responsibility of such Selling Holder to provide such
person with such current copy of the prospectus and such current copy of the
prospectus would have cured the defect giving rise to such loss, claim, damage,
liability or expense. The Company also agrees to indemnify any underwriters of
the Registrable Securities, their officers, partners and directors and each
person who controls such underwriters on substantially the same basis as that of
the indemnification of the Selling Holder provided in this Section 7 or such
other indemnification customarily obtained by underwriters at the time of
offering.
(b) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any action or proceeding
(including any governmental investigation) shall be brought or asserted against
a Selling Holder (or its officers, directors, partners, attorneys or agents) or
any person controlling such Selling Holder in respect of which indemnity may be
sought from the Company, the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Selling Holder, and
shall assume the payment of all expenses. Each Selling Holder or any controlling
person of a Selling Holder shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Selling Holder or such
controlling person unless (i) the Company has agreed to pay such fees and
expenses or (ii) the named parties to any such action or proceeding (including
any impleaded parties) include both the Selling Holder or such controlling
person and the Company, and the Selling Holder or such controlling person shall
have been advised by counsel that there may be one or more legal defenses
available to such Selling Holder or such controlling person which are different
from or additional to those available to the Company (in which case, if such
Selling Holder or such controlling person notifies the Company in writing that
it elects to employ separate counsel at the expense of the Company, the Company
shall not have the right to
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assume the defense of such action or proceeding on behalf of such Selling Holder
or such controlling person) or (iii) the use of counsel chosen by the Company to
represent the Selling Holder would present such counsel with a conflict of
interest or (iv) the Company shall not have employed counsel satisfactory to the
Selling Holder to represent the Selling Holder within a reasonable time after
notice of the institution of such action; it being understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for each Selling Holder,
which firm shall be designated in writing by such Selling Holder). The Company
shall not be liable for any settlement of any such action or proceeding effected
without the Company's written consent, but if settled with its written consent,
or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless each Selling
Holder and controlling person from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment. The Company shall
not, without the prior written consent of the Selling Holder, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Selling Holders are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of each
Selling Holder from all liability arising out of such claim, action, suit or
proceeding.
(c) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each Selling
Holder agrees to indemnify and hold harmless the Company, its directors and
officers and each person, if any, who controls the Company within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Selling Holder, but
only with respect to information furnished in writing by the Selling Holder or
on the Selling Holder's behalf expressly for use in any registration statement
or prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its directors or officers, or
any such controlling person, in respect of which indemnity may be sought against
a Selling Holder, such Selling Holder shall have the rights and duties given to
the Company, and the Company or its directors or officers or such controlling
person shall have the rights and duties given to a Selling Holder, by the
preceding paragraph. The Selling Holder also agrees that it will enter into an
indemnity agreement to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 7(c). Notwithstanding
the foregoing, the liability of a Selling Holder pursuant to this Section 7(c)
shall not exceed the amount of the aggregate proceeds of the Registrable
Securities of the Selling Holder.
(d) CONTRIBUTION. If the indemnification provided for in this Section 7
is unavailable to the Company or a Selling Holder in respect of any losses,
claims, damages, liabilities or
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judgments referred to herein, then each such indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) as between the Company and such Selling Holder on
the one hand and the underwriters on the other, in such proportion as is
appropriate to reflect the relative benefits received by the Company and a
Selling Holder on the one hand and the underwriters on the other from the
offering of the Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and such Selling
Holder on the one hand and of the underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable considerations
and (ii) as between the Company, on the one hand, and a Selling Holder on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company and of such Selling Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The relative
benefits received by the Company and a Selling Holder on the one hand and the
underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and such Selling Holder
bear to the total underwriting discounts and commissions received by the
underwriters, in each case as set forth in the table on the cover page of the
prospectus. The relative fault of the Company and such Selling Holder on the one
hand and of the underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and such Selling Holder or by the
underwriters. The relative fault of the Company on the one hand and of such
Selling Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Selling Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no underwriter shall be
required to contribute any amount in excess of the
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amount by which the total price at which the Registrable Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission, and a Selling Holder shall not be required to contribute any amount in
excess of the amount of the total price at which the Registrable Securities of
the Selling Holder were offered to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 7 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability are incurred.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No person may participate in any underwritten registration hereunder
unless such person (a) agrees to sell such person's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required by the Company
or managing underwriter under the terms of such underwriting arrangements and
this Agreement.
9. RULE 144 AND REPORTS.
The Company shall timely file the reports required to be filed by it
under the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, will, upon the request of any
holder of Registrable Securities, make publicly available other information) and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule of regulation hereafter adopted by the Commission. Upon the request
of any holder of Registrable Securities, the Company will deliver to such holder
a written statement as to whether it has complied with such requirements.
10. MISCELLANEOUS.
(a) BINDING EFFECT. Unless otherwise provided herein, the provisions of
this Agreement shall be binding upon and accrue to the benefit of the parties
hereto and their respective heirs and legal representatives and permitted
transferees, successors and assigns. The rights and obligations of a Holder
hereunder cannot be assigned or transferred without the prior written consent of
the Company except by will or intestacy or by operation of law.
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(b) AMENDMENT. This Agreement may be amended or terminated only by a
written instrument signed by the Company and each of the Holders.
(c) APPLICABLE LAW. The internal laws of the State of New York (without
regard to choice of law provisions thereof) shall govern the interpretation,
validity and performance of the terms of this Agreement.
(d) NOTICES. All notices provided for herein shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
registered or certified mail, postage prepaid:
(i) if to the Company, to:
VAALCO Energy, Inc.
0000 Xxxx Xxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
with a copy to:
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxx Xxxxx
(ii) if to Jefferies & Company, Inc.:
Jefferies & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxx, Executive Vice
President and General Counsel
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Mr. T. Xxxx Xxxxx
(iii) if to the Stockholders, to the respective addresses set
forth on EXHIBIT A hereto.
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(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one instrument.
(f) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
VAALCO ENERGY, INC.
By: /s/ XXXXXX X. XXXXX III
Name: Xxxxxx X. Xxxxx III
Title: Chairman of the Board and
Chief Executive Officer
JEFFERIES & COMPANY, INC.
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
STOCKHOLDERS:
_____________________________________
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EXHIBIT A
NAME OF STOCKHOLDER AND ADDRESS NUMBER OF SHARES
----------------------------------------------------------- ----------------
-15-
