REGISTRATION RIGHTS AGREEMENT
Exhibit
4.1
This
REGISTRATION RIGHTS AGREEMENT
(this “Agreement”)
is made as of August 25, 2008, by and among (i) Canadian Superior Energy Inc., a
corporation incorporated under the laws of Canada (the “Company”),
(ii) each person listed on Exhibit A
attached hereto (collectively, the “Initial
Purchasers” and each individually, an “Initial
Purchaser”),
and (iii) each person or entity that subsequently becomes a party to this
Agreement pursuant to, and in accordance with, the provisions of Section 12
hereof (collectively, the “Purchaser
Permitted Transferees”
and each individually an “Purchaser
Permitted Transferee”).
BACKGROUND
A. The
Company has agreed to issue and sell to the Initial Purchasers, and the Initial
Purchasers have agreed to purchase from the Company: (i) up to an aggregate of
8,750,000 shares
(the “Shares”) of the
Company’s common stock (the “Common Stock”); and (ii)
certain warrants to purchase up to an aggregate of 4,375,000 shares of Common Stock
(the “Warrants”), all
upon the terms and conditions set forth in that certain Securities Purchase
Agreement, dated of even date herewith, by and among the Company and the Initial
Purchasers (the “Securities
Purchase Agreement”). The shares of Common Stock underlying the Warrants
shall be referred to herein as the “Warrant Shares,” and the
Shares, the Warrants and the Warrant Shares shall be referred to herein as the
“Securities.” Other
capitalized terms used herein shall have the respective meanings ascribed
thereto in the Securities Purchase Agreement, unless otherwise defined
herein.
B.
The terms of the Securities Purchase Agreement provide that it shall be a
condition precedent to the Closing of the transactions contemplated thereunder,
for the Company and the Initial Purchasers to execute and deliver this
Agreement.
AGREEMENT
In
consideration of the premises and mutual covenants contained herein, the parties
hereto hereby agree as follows:
1. DEFINITIONS. The
following terms shall have the meanings provided therefor below or elsewhere in
this Agreement as described below:
“Board” shall mean the board of
directors of the Company.
“Purchasers” shall mean,
collectively, the Initial Purchasers and the Purchaser Permitted Transferees;
provided, however that the term
“Purchasers” shall not include any of the Initial Purchasers or any of the
Purchaser Permitted Transferees that ceases to own or hold any
Securities.
“Majority Holders” shall mean,
at the relevant time of reference thereto, those Purchasers holding more than
50% of the Registrable Shares held by all of the Purchasers.
“Qualifying Holder” shall have
the meaning ascribed thereto in Section 12 hereof.
“Registrable Shares” shall
mean: (i) the Shares; and (ii) the Warrant Shares; provided, however, such term shall not,
after the Mandatory Registration Termination Date, include any of the Shares or
Warrant Shares that become or have become eligible for resale without
restrictions pursuant to Rule 144 or pursuant to Regulation S.
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“Rule 144” shall mean Rule 144
promulgated under the Securities Act and any successor or substitute rule, law
or provision.
2. MANDATORY
REGISTRATION.
(a) Within
30 Business Days after the Closing Date (the “Filing Deadline”), subject to
receipt of all necessary information from the Purchasers after prompt request
from the Company to the Purchasers to provide such information, the Company will
prepare and file with the SEC a registration statement on: (i) with the consent
of the Majority Holders, and if the Company is eligible to use Form F-10, Form
F-10; (ii) if the foregoing clause (i) does not apply, and if the Company is
eligible to use Form F-3, Form F-3; or (iii) if the foregoing clauses (i) and
(ii) do not apply, any other form of registration statement available to the
Company, for the purpose of registering under the Securities Act all of the
Registrable Shares for resale by, and for the account of, the Purchasers, as
selling stockholders thereunder (the “Registration
Statement”). The Registration Statement shall permit the
Purchasers to offer and sell, on a delayed or continuous basis pursuant to Rule
415 under the Securities Act, any or all of the Registrable
Shares. The Company agrees to use its reasonable best efforts to
cause the Registration Statement to become effective as soon as practicable
following filing.
(b) The
Company shall be required to keep the Registration Statement effective until
such date that is the earliest of: (i) the date as of which all of the
Purchasers may sell all of the Registrable Securities covered thereby without
restriction pursuant to Rule 144 (or the successor rule thereto) promulgated
under the Securities Act; (ii) the date when all of the Registrable Shares
registered thereunder shall have been sold; or (iii) the second anniversary of
the date on which such Registration Statement became effective (the “Effectiveness Date” of such
Registration Statement), subject to extension as set forth below (such date, the
“Mandatory Registration
Termination Date” for such Registration Statement). Following
a the Mandatory Registration Termination Date for any Registration Statement,
the Company shall be entitled to withdraw such Registration Statement, and the
Purchasers shall have no further right to offer or sell any of the Registrable
Shares pursuant thereto (or any prospectus relating thereto). In the
event that the right of the Purchasers to use a Registration Statement (and the
prospectus relating thereto) is delayed or suspended pursuant to Sections 5(c)
or 11 hereof, the Company shall be required to extend the Mandatory Registration
Termination Date for such Registration Statement beyond the second anniversary
of the Effectiveness Date of such Registration Statement by the same number of
days as such delay or Suspension Period (as defined in Section 11
hereof).
3. PENALTIES/SUSPENSION OF THE
REGISTRATION STATEMENTS
(a) If
the Registration Statement is not filed with the SEC on or prior to the Filing
Deadline, then Company will make payments to each Purchaser, as liquidated
damages and not as a penalty, in an amount equal to 1% of the aggregate amount
invested by such Purchaser in the Closing for each 30-calendar day period (or
pro rata portion
thereof) following the Filing Deadline during which no Registration Statement is
filed with respect to the Registrable Shares; provided, however, that in no event
shall the aggregate liquidated damages payable by the Company under this
Agreement to any Purchaser exceed 20% of the aggregate Purchase Price paid by
such Purchaser for all Securities acquired by such Purchaser pursuant to the
Securities Purchase Agreement. Such payments shall be made to each
Purchaser in cash. The
amounts payable as liquidated damages pursuant to this paragraph shall be paid
in lawful money of the United States within three Business Days of the last day
of each such 30-calendar day period.
(b) The
Company shall use its reasonable best efforts to have the Registration Statement
declared effective as soon as practicable following filing. The
Company shall notify the Purchasers as promptly as practicable, and in any
event, within one Business Day, after the Registration
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Statement
is declared effective and shall simultaneously provide the Purchasers with
copies of any related prospectus to be used in connection with the sale or other
disposition of the securities covered thereby. If (A) the
Registration Statement is not declared effective by the SEC within 90 calendar
days following the filing date thereof (or 150 calendar days if reviewed by the
SEC) (for the purposes of this paragraph, the “Effectiveness Deadline” for
such Registration Statement), or (B) after the Registration Statement has been
declared effective by the SEC, sales cannot be made pursuant thereto for any
reason (including without limitation by reason of a stop order, or the Company’s
failure to update the Registration Statement), but excluding the inability of
any Purchaser to sell the Registrable Shares covered thereby due to market
conditions and except as excused pursuant to Section 11 below, and subject
to receipt of all necessary information from the Purchasers after prompt request
from the Company to the Purchasers to provide such information, then the Company
will make pro rata
payments to each Purchaser, as liquidated damages and not as a penalty, in an
amount equal to 1% of the aggregate amount invested by such Purchaser in the
Closing for each 30-calendar day period (or pro rata portion thereof)
following the Effectiveness Deadline during which such Registration Statement
has not been declared effective or cannot be used pursuant to the preceding
clause (B) (for the purposes of this paragraph, the “Blackout Period” for such
Registration Statement); provided, however that in no event
shall the aggregate liquidated damages payable by the Company to any Purchaser
exceed 20% of the aggregate Purchase Price paid by such Purchaser for all
Securities acquired by such Purchaser pursuant to the Securities Purchase
Agreement. The amounts payable as liquidated damages pursuant to this paragraph
shall be paid in lawful money of the United States within three Business Days of
the last day of each 30-calendar day period following the commencement of the
Blackout Period until the termination of the Blackout Period.
(c) No
Purchaser shall be entitled to a payment pursuant to this Section 3 if
effectiveness of a registration statement has been delayed or a prospectus has
been unavailable as a result of (i) a failure by such Purchaser to promptly
provide on request by the Company the information required under the Securities
Purchase Agreement or this Agreement or requested by the SEC as a condition to
effectiveness of the Registration Statement; (ii) the provision of inaccurate or
incomplete information by such Purchaser; or (iii) a statement or determination
of the SEC that any provision of the rights of the Purchaser under this
Agreement is contrary to the provisions of the Securities Act.
4. “PIGGYBACK” REGISTRATION
RIGHTS.
(a) If,
at any time after the Mandatory Registration Termination Date for the
Registration Statement, the Company proposes to register any of its Common Stock
under the Securities Act, whether as a result of a primary or secondary offering
of Common Stock or pursuant to registration rights granted to holders of other
securities of the Company (but excluding in all cases any registrations to be
effected on Forms F-4 or F-8 or other applicable successor Forms), the Company
shall, each such time, give to the Purchasers holding Registrable Shares written
notice of its intent to do so. Upon the written request of any such
Purchaser given within 20 Business Days after the giving of any such notice by
the Company, the Company shall use its reasonable best efforts to cause to be
included in such registration the Registrable Shares of such selling Purchaser,
to the extent requested to be registered; provided, however that: (i) such
selling Purchaser agrees to sell those of its Registrable Shares to be included
in such registration in the same manner and on the same terms and conditions as
the other shares of Common Stock which the Company proposes to register; and
(ii) if the registration is to include shares of Common Stock to be sold for the
account of the Company or any party exercising demand registration rights
pursuant to any other agreement with the Company, the proposed managing
underwriter does not advise the Company that in its opinion the inclusion of
such selling Purchaser’s Registrable Shares (without any reduction in the number
of shares to be sold for the account of the Company or such party exercising
demand registration rights) is likely to affect materially and adversely the
success of the offering or the price that would be received for any shares of
Common Stock offered, in which case the rights of such selling Purchaser shall
be as provided in Section 4(b) hereof.
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(b) If
a registration pursuant to Section 4(a) hereof involves an underwritten offering
and the managing underwriter shall advise the Company in writing that, in its
opinion, the number of shares of Common Stock requested by the Purchasers to be
included in such registration is likely to affect materially and adversely the
success of the offering or the price that would be received for any shares of
Common Stock offered in such offering, then, notwithstanding anything in Section
4(a) to the contrary, the Company shall be required to include in such
registration only the number of shares of Common Stock which the Company is so
advised can be sold in such offering: (i) first, the number of shares of Common
Stock proposed to be included in such registration for the account of the
Company and/or any stockholders of the Company (other than the Purchasers) that
have exercised demand registration rights, in accordance with the priorities, if
any, then existing among the Company and/or such stockholders of the Company
with registration rights (other than the Purchasers); and (ii) second, the
shares of Common Stock requested to be included in such registration by all
other stockholders of the Company who have piggyback registration rights
(including, without limitation, the Purchasers), pro rata among such other
stockholders (including, without limitation, the Purchasers) on the basis of the
number of shares of Common Stock that each of them requested to be included in
such registration.
(c) In
connection with any offering involving an underwriting of shares, the Company
shall not be required under Section 4 hereof or otherwise to include the
Registrable Shares of any Purchaser therein unless such Purchaser accepts and
agrees to the terms of the underwriting, which shall be reasonable and
customary, as agreed upon between the Company and the underwriters selected by
the Company.
5. OBLIGATIONS OF THE
PARTIES. In connection with the Company's obligation under
Section 2 and 4 hereof to file the Registration Statements with the SEC and to
use its reasonable best efforts to cause the Registration Statements to become
effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare
and file with the SEC such amendments and supplements to the Registration
Statements and the prospectuses used in connection therewith as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Shares covered by such Registration
Statements;
(b) Furnish
to the selling Purchasers such number of copies of each prospectus, including
each preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents (including, without limitation,
prospectus amendments and supplements as are prepared by the Company in
accordance with Section 5(a) above) as the selling Purchasers may reasonably
request in order to facilitate the disposition of such selling Purchasers'
Registrable Shares;
(c) Notify
the selling Purchasers, at any time when a prospectus relating to any
Registration Statement is required to be delivered under the Securities Act, of
the happening of any event as a result of which the prospectus included in or
relating to such Registration Statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading; and, thereafter, the Company will promptly prepare (and, when
completed, give notice to each selling Purchaser) a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading; provided,
however that upon such notification by the Company, the selling
Purchasers will not offer or sell Registrable Shares until the Company has
notified the selling Purchasers that it has prepared a supplement or amendment
to such prospectus and delivered copies of such supplement or amendment to the
selling Purchasers (it being understood and agreed by the Company that the
foregoing proviso shall in no way diminish or otherwise impair the Company's
obligation to promptly prepare a prospectus amendment
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or
supplement as above provided in this Section 5(c) and deliver copies of same as
above provided in Section 5(b) hereof); and
(d) Use
its reasonable best efforts to register and qualify the Registrable Shares
covered by the Registration Statements under such other securities or Blue Sky
laws of such states as shall be reasonably appropriate in the opinion of the
Company and the managing underwriters, if any; provided, however 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; and provided, further that (notwithstanding
anything in this Agreement to the contrary with respect to the bearing of
expenses) if any jurisdiction in which any of such Registrable Shares shall be
qualified shall require that expenses incurred in connection with the
qualification therein of any such Registrable Shares be borne by the selling
Purchasers, then the selling Purchasers shall, to the extent required by such
jurisdiction, pay their pro
rata share of such qualification expenses.
(e) Subject
to the terms and conditions of this Agreement, including Section 3 hereof, the
Company shall use its reasonable best efforts to: (i) prevent the issuance of
any stop order or other suspension of effectiveness of any Registration
Statement, or the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction in the United States; (ii) if
such an order or suspension is issued, obtain the withdrawal of such order or
suspension at the earliest practicable moment and notify each holder of
Registrable Securities of the issuance of such order and the resolution thereof
or its receipt of notice of the initiation or threat of any proceeding such
purpose.
(f) The
Company shall: (i) comply with all requirements of the Financial Industry
Regulatory Authority, the Toronto Stock Exchange and the American Stock Exchange
with regard to the issuance of the Shares and the listing thereof on such
exchange; and (ii) engage a transfer agent and registrar to maintain the
Company's stock ledger for all Shares covered by each Registration Statement not
later than the effective date of such Registration Statement.
6. FURNISH
INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Purchasers shall furnish to the Company such information regarding
them and the securities held by them as the Company shall reasonably request and
as shall be required in order to effect any registration by the Company pursuant
to this Agreement. Each Purchaser shall promptly notify the Company
of any changes in the information furnished to the Company.
7. EXPENSES OF
REGISTRATION. All expenses incurred in connection with the
registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
8. DELAY OF
REGISTRATION. The Purchasers shall not take any action to
restrain, enjoin or otherwise delay any registration as the result of any
controversy which might arise with respect to the interpretation or
implementation of this Agreement.
9. INDEMNIFICATION.
(a) To
the extent permitted by law, the Company will indemnify and hold harmless each
selling Purchaser, any investment banking firm acting as an underwriter for the
selling Purchasers, any broker/dealer acting on behalf of any selling Purchasers
and each officer and director of such selling Purchaser, such underwriter, such
broker/dealer and each person, if any, who controls such selling
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Purchaser,
such underwriter or broker/dealer within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
they may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in any Registration Statement, in any preliminary prospectus or final
prospectus relating thereto or in any amendments or supplements to such
Registration Statement or any such preliminary prospectus or final prospectus,
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 not misleading; and will reimburse such selling Purchaser,
such underwriter, broker/dealer or such officer, director 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 Section 9(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, damage, liability or action to the extent that it arises out
of or is based upon: (i) an untrue statement or alleged untrue statement or
omission made in connection with any Registration Statement, any preliminary
prospectus or final prospectus relating thereto or any amendments or supplements
to such Registration Statement or any such preliminary prospectus or final
prospectus, in reliance upon and in conformity with written information
furnished expressly for use in connection with such Registration Statement or
any such preliminary prospectus or final prospectus by such selling Purchaser,
any underwriter for them or controlling person with respect to them; or (ii) any
transaction effected by such selling Purchaser following receipt of a
certificate referred to below in Section 11 relating to a Suspension Period (as
defined in Section 11), which transaction is effected by such selling Purchaser
in violation of Section 11.
(b) To
the extent permitted by law, each selling Purchaser will, severally and not
jointly, 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 Securities Act, any
investment banking firm acting as underwriter for the Company or the selling
Purchasers, or any broker/dealer acting on behalf of the Company or any selling
Purchasers, and all other selling Purchasers against any losses, claims, damages
or liabilities to which the Company or any such director, officer, controlling
person, underwriter, or broker/dealer or such other selling Purchaser may become
subject to, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any untrue or alleged untrue statement of any material fact
contained in any Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to such
Registration Statement or any such preliminary prospectus or final prospectus,
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 not misleading, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to such Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by the selling Purchaser expressly for use in connection with such
Registration Statement, or any preliminary prospectus or final prospectus; and
such selling Purchaser will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter, broker/dealer or other selling Purchaser in connection with
investigating or defending any such loss, claim,
damage, liability or action, provided, however, that the liability
of each selling Purchaser hereunder shall be limited to the proceeds (net of
underwriting discounts and commissions, if any) received by such selling
Purchaser from the sale of Registrable Shares covered by such Registration
Statement; and provided, further that the indemnity
agreement contained in this Section 9(b) shall not apply to amounts paid in
settlement of any such loss,
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claim,
damage, liability or action if such settlement is effected without the consent
of those selling Purchaser(s) against which the request for indemnity is being
made (which consent shall not be unreasonably withheld).
(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the extent the
indemnifying party desires, jointly with any other indemnifying party similarly
noticed, to assume at its expense the defense thereof with counsel mutually
satisfactory to the indemnifying parties. In the event that the
indemnifying party assumes any such defense, the indemnified party may
participate in such defense with its own counsel and at its own expense, provided, however, that the counsel for
the indemnifying party shall act as lead counsel in all matters pertaining to
such defense or settlement of such claim and the indemnifying party shall only
pay for such indemnified party's expenses for the period prior to the date of
its participation on such defense. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
9, but the omission so to notify the indemnifying party will not relieve him of
any liability which he may have to any indemnified party otherwise other than
under this Section 9.
(d) Notwithstanding
anything to the contrary herein, the indemnifying party shall not be entitled to
settle any claim, suit or proceeding unless in connection with such settlement
the indemnified party receives an unconditional release with respect to the
subject matter of such claim, suit or proceeding and such settlement does not
contain any admission of fault by the indemnified party.
10. REPORTS UNDER THE EXCHANGE
ACT. With a view to making available to the Purchasers the
benefits of Rule 144 and any other rule or regulation of the SEC that may at any
time permit the Purchasers to sell the Securities to the public without
registration, the Company agrees to use its reasonable best efforts: (i) to make
and keep public information available as those terms are understood in Rule 144;
(ii) to file with the SEC in a timely manner all reports and other documents
required to be filed by an issuer of securities registered under the Securities
Act or the Exchange Act; (iii) as long as any Purchaser owns any Securities, to
furnish in writing upon such Purchaser's request a written statement by the
Company that it has complied with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act, and to furnish to such Purchaser a copy
of the most recent annual or quarterly report of the Company, and such other
reports and documents so filed by the Company as may be reasonably requested in
availing such Purchaser of any rule or regulation of the SEC permitting the
selling of any such Securities without registration; and (iv) undertake any
additional actions reasonably necessary to maintain the availability of any
Registration Statement or the use of Rule 144.
11. DEFERRAL.
Notwithstanding anything in this Agreement to the contrary, if the Company shall
furnish to the selling Purchasers a certificate signed by the President or Chief
Executive Officer of the Company stating that the Board has made the good faith
determination that either: (A) any event or circumstance has occurred or will
occur, which upon the advice of counsel, necessitates the making of any changes
in any Registration Statement or related prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that in the
case of such Registration Statement, it will not contain any untrue statement of
a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (B) (i) continued
use by the selling
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Purchasers
of a Registration Statement for purposes of effecting offers or sales of
Registrable Shares pursuant thereto would require, under the Securities Act,
premature disclosure in such Registration Statement (or the prospectus relating
thereto) of material, nonpublic information concerning the Company, its business
or prospects or any proposed material transaction involving the Company; (ii)
such premature disclosure would be materially adverse to the Company, its
business or prospects or any such proposed material transaction or would make
the successful consummation by the Company of any such material transaction
significantly less likely; and (iii) it is therefore essential to suspend the
use by the Purchasers of such Registration Statement (and the prospectus
relating thereto) for purposes of effecting offers or sales of Registrable
Shares pursuant thereto, then the right of the Purchasers to use such
Registration Statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto shall be
suspended for a period (the “Suspension Period”) of not
more than 30 calendar days after delivery by the Company of the certificate
referred to above in this Section 11; provided, however that the Company
shall be entitled to no more than two such Suspension Periods during any
12-month period. During the Suspension Period, none of the Purchasers shall
offer or sell, or attempt to offer or sell, any Registrable Shares pursuant to
or in reliance upon the Registration Statement (or the prospectus relating
thereto). The Company shall use reasonable best efforts to terminate
any Suspension Period as promptly as practicable.
12. TRANSFER OF REGISTRATION
RIGHTS. None of the rights of any Purchaser under this
Agreement shall be transferred or assigned to any person unless: (i) such person
is a Qualifying Holder (as defined below); and (ii) such person agrees to become
a party to, and bound by, all of the terms and conditions of, this Agreement by
duly executing and delivering to the Company an Instrument of Adherence in the
form attached as Exhibit B
hereto. For purposes of this Section 12, the term “Qualifying Holder” shall mean,
with respect to any Purchaser: (i) any partner or member thereof; (ii) any
corporation, partnership or limited liability company controlling, controlled
by, or under common control with, such Purchaser or any partner or member
thereof; or (iii) any other direct transferee from such Purchaser of at least
50% of those Registrable Shares held by such Purchaser. None of the
rights of any Purchaser under this Agreement shall be transferred or assigned to
any person (including, without limitation, a Qualifying Holder) that acquires
Registrable Shares in the event that and to the extent that such person is
eligible to resell such Registrable Shares without restrictions pursuant to Rule
144 of the Securities Act or may otherwise resell such Registrable Shares
without restrictions pursuant to an exemption from the registration provisions
of the Securities Act. After any transfer in accordance with this
Section 12, the rights and obligations of a Purchaser as to any transferred
Registrable Shares shall be the rights and obligations of the Purchaser
Permitted Transferee holding such Registrable Shares.
13. ENTIRE
AGREEMENT. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and it also supersedes any and all prior negotiations, correspondence,
agreements or understandings with respect to the subject matter
hereof.
14. MISCELLANEOUS.
(a) This
Agreement may not be amended, modified or terminated, and no rights or
provisions may be waived, except with the written consent of the Majority
Holders and the Company.
(b) THIS
AGREEMENT (INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS
AGREEMENT) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THAT
WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF
NEW YORK.
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(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors or assigns
(including any Purchaser Permitted Transferee); provided, however that the terms and
conditions of Section 12 hereof are satisfied. Notwithstanding anything in this
Agreement to the contrary, if at any time any Purchaser shall cease to own any
Purchased Shares, all of such Purchaser's rights under this Agreement shall
immediately terminate.
(d) Wherever
in this Agreement there is a reference to a specific number of shares of the
Company’s Common Stock, then, upon the occurrence of any subdivision,
combination or stock dividend of such class of stock, the specific number of
shares so referenced in this Agreement shall automatically be proportionally
adjusted to reflect the affect on the outstanding shares of such class by such
subdivision, combination or stock dividend.
(e) Any
notices, reports or other correspondence (hereinafter collectively referred to
as “correspondence”) required or permitted to be given hereunder shall be sent
by courier (overnight or same day) or telecopy or delivered by hand to the party
to whom such correspondence is required or permitted to be given
hereunder. The date of giving any notice shall be the date of its
actual receipt.
(i) All
correspondence to the Company shall be addressed as follows:
3200,
000 – 0xx Xxxxxx XX
Xxxxxxx,
XX X0X 0X0
ATTN:
Chief Executive Officer
with a copy
(not constituting notice) addressed to:
Xxxxxx
Xxxxxx Xxxxxxx LLP
0000
Xxxxxxxx Xxxxx
000
Xxxxx Xxxxxx X.X.
Xxxxxxx,
XX X0X 0X0
ATTN:
Xxxx X. Xxxxxxx, Esq.
(ii) All
correspondence to any Purchaser shall be sent to such Purchaser at the address
set forth in Exhibit A, with
a copy (not constituting notice) addressed to:
Xxxxxx
Xxxx Nemerovski Xxxxxx Xxxx & Rabkin
A
Professional Corporation
Three
Xxxxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
ATTN:
Xxxx X. Xxxxxxx, Esq.
(f) Any
person may change the address to which correspondence to it is to be addressed
by notification as provided for herein.
(g) The
parties acknowledge and agree that in the event of any breach of this Agreement,
remedies at law may be inadequate, and each of the parties hereto shall be
entitled to seek specific performance of the obligations of the other parties
hereto and such appropriate injunctive relief as may be granted by a court of
competent jurisdiction.
-9-
(h) This
Agreement may be executed in a number of counterparts, any of which together
shall for all purposes constitute one Agreement, binding on all the parties
hereto notwithstanding that all such parties have not signed the same
counterpart. A facsimile, telecopy or electronic reproduction of this Agreement
may be executed by one or more parties hereto and delivered by such party by
facsimile or by electronic transmission pursuant to which the signature of such
party can be seen. Such execution and delivery shall be considered valid,
binding and effective for all purposes.
[Signature
Pages Follow]
-10-
IN
WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
|
By:
|
||
|
Name:
|
Xxxxx
XxXxxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
[SIGNATURE
PAGE TO REGISTRATION RIGHTS
AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
|
STEELHEAD
NAVIGATOR MASTER, L.P.
|
||||||||
|
By:
|
STEELHEAD
OFFSHORE PARTNERS, LLC,
its
General Partner
|
|||||||
|
|
By:
|
Steelhead
Partners, LLC, its sole Member
|
||||||
|
By
|
Xxxxx
Xxxxx, Chief Financial Officer
|
|||||||
IN
WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
|
Buyer:
Micro Cap Partners, L.P.
|
||
|
By:
|
Palo
Alto Investors, LLC, its general partner
|
|
|
By:
|
||
|
Name:
|
Xxxx
Xxxxxx
|
|
|
Title:
|
Chief
Operating Officer
|
|
|
Buyer:
UBTI Free, L.P.
|
||
|
By:
|
Palo
Alto Investors, LLC, its general partner
|
|
|
By:
|
||
|
Name:
|
Xxxx
Xxxxxx
|
|
|
Title:
|
Chief
Operating Officer
|
|
|
Buyer:
Palo Alto Small Cap Master Fund, L.P.
|
||
|
By:
|
Palo
Alto Investors, LLC, its general partner
|
|
|
By:
|
||
|
Name:
|
Xxxx
Xxxxxx
|
|
|
Title:
|
Chief
Operating Officer
|
|
|
Buyer:
Palo Alto Global Energy Master Fund, L.P.
|
||
|
By:
|
Palo
Alto Investors, LLC, its general partner
|
|
|
By:
|
||
|
Name:
|
Xxxx
Xxxxxx
|
|
|
Title:
|
Chief
Operating Officer
|
|
IN
WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
|
TALKOT
CAPITAL LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Exhibit
A
SCHEDULE OF
PURCHASERS
|
Purchaser
Name and Address
|
|
|
Steelhead
Navigator Master, L.P.
1301
– 0xx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
|
|
|
Palo
Alto Small Cap Master Fund, L.P.
000
Xxxxxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
|
|
|
Palo
Alto Global Energy Master Fund, L.P.
000
Xxxxxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
|
|
|
Micro
Cap Partners, L.P.
000
Xxxxxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
|
|
|
UBTI
Free, L.P.
000
Xxxxxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
|
|
|
Talkot
Capital LLC
0000
Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000-0000
|
A-1
EXHIBIT
B
INSTRUMENT OF
ADHERENCE
Reference
is hereby made to that certain Registration Rights Agreement, dated as of August
25, 2008, among Canadian Superior Energy Inc., a corporation incorporated under
the laws of Canada (the “Company”), the Initial
Purchasers and the Purchaser Permitted Transferees, as amended and in effect
from time to time (the “Registration Rights Agreement”). Capitalized terms
used herein without definition shall have the respective meanings ascribed
thereto in the Registration Rights Agreement.
The
undersigned, in order to become the owner or holder of [___________] shares of
the Common Stock of the Company, hereby agrees that, from and after the date
hereof, the undersigned has become a party to the Registration Rights Agreement
in the capacity of a Purchaser Permitted Transferee, and is entitled to all of
the benefits under, and is subject to all of the obligations, restrictions and
limitations set forth in, the Registration Rights Agreement that are applicable
to Purchaser Permitted Transferees. This Instrument of Adherence
shall take effect and shall become a part of the Registration Rights Agreement
immediately upon execution.
Executed
as of the date set forth below.
|
By:
|
||
|
Name:
|
||
|
Title:
|
Accepted:
|
By:
|
||
|
Name:
|
||
|
Title:
|
B-1
