EXHIBIT 10.9
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of
October __, 1999, is between Xxxxxx Oil and Gas Company ("Xxxxxx"), of
Carpinteria, California and First Seismic Corporation ("First Seismic") of
Houston, Texas.
WITNESSETH:
WHEREAS, Xxxxxx is the owner of all the issued and outstanding
shares of Series B Preferred Stock of First Seismic, par value $.01 per share
(the "Preferred Stock"), of First Seismic, which are convertible into common
stock of First Seismic (the "Common Stock");
WHEREAS, under the provisions of the Securities Act of 1933 (the
"Securities Act") and the general rules and regulations promulgated by the
Securities and Exchange Commission thereunder, Xxxxxx may be limited in the
manner of selling shares of Common Stock acquired by Xxxxxx upon a conversion
of shares of Preferred Stock, absent registration under the Securities Act of
the sale of such Common Stock or the availability of another exemption from
the registration requirements of the Securities Act;
WHEREAS, the First Seismic wishes to establish certain other
restrictions on the sale of Common Stock owned by Xxxxxx, and the First
Seismic and Xxxxxx desire to set forth certain registration rights as to such
shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
SECTION 1. CERTAIN DEFINITIONS AND TERMS.
The following terms have the meanings indicated:
"Directors" means the members of the First Seismic's board of
directors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" means Xxxxxx or any other Person holding Registrable
Shares.
"Participation Notice" means a written or oral notice by a Holder of
his desire to sell Registrable Shares in a registration by the First Seismic.
"Person" means any individual, firm, corporation, trust,
association, partnership, joint venture or other entity.
"Registrable Shares" means all shares of Common Stock owned by a
Holder resulting from the conversion of shares of Preferred Stock or other
securities issued or issuable upon any stock split, stock
dividends, recapitalization or similar event with respect to shares of Common
Stock owned by a Holder resulting from the conversion of shares of Preferred
Stock.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with
the Securities Act and the declaration or ordering of effectiveness of such
registration statement.
"Registration Notice" means a written or oral notice by to the
Holders of its intent to file a registration statement with the SEC.
"Rights" means rights, remedies, powers, benefits, and privileges.
"SEC" means the Securities and Exchange Commission or any successor
thereof.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
SECTION 2. REGISTRATION RIGHTS.
(a) Upon Xxxxxx'x exercise of its option to convert its shares of
Preferred Stock into shares of Common Stock, Xxxxxx shall have the right to
sell any of all of its Registrable Shares into a successful First Seismic
secondary public offering and receive the net market proceeds per share
received by First Seismic from such an offering in accordance with the terms
of this Section 2.
(b) If, at any time, First Seismic proposes to file a registration
statement in connection with the public offering of shares of Common Stock to
be sold by First Seismic for its own account under the Securities Act (other
than a registration on Forms X-0, X-0 or any successor forms), prior to such
filing, First Seismic shall give each Holder a Registration Notice. Within
five days after receipt by any Holder of a Registration Notice, such Holder
shall deliver to First Seismic a Participation Notice of such Holder's desire
to sell Registrable Shares under such registration. The Participation Notice
shall state the number of Registrable Shares to be disposed in such
registration; provided, however, such holder's right to registration of such
Registrable Shares shall be subject to any limitations in the number thereof
required by the underwriters pursuant to Section 5. Notwithstanding, a Holder
may exercise its rights under this section 2(b) no more than two times.
(c) Upon receiving a Participation Notice in accordance with Section
2(b), First Seismic shall use reasonable efforts to promptly cause all such
Registrable Shares to be registered along with the other shares of Common
Stock to be registered.
(d) The Registrable Shares proposed to be registered under any
registration statement under Section 2(b) hereof will be offered for sale at
the same public offering price as the shares of Common Stock offered for sale
by First Seismic.
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-2-
(e) As soon as practicable after delivering a Participation Notice,
each Holder so delivering a Participation Notice will execute and deliver a
custody agreement and power of attorney satisfactory to the First Seismic
with respect to the Registrable Shares to be registered (a "Custody
Agreement" and "Power of Attorney," respectively). The Custody Agreement and
Power of Attorney will provide, among other things, that such Holder will
deliver to and deposit in custody with the custodian named therein a
certificate or certificates representing such Registrable Shares (duly
endorsed in blank by the registered owner or owners thereof or accompanied by
duly executed stock powers in blank) and irrevocably appoint said custodian
and attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney, respectively, on the Holder's behalf with
respect to matters specified therein, including the execution and delivery of
an underwriting agreement.
SECTION 3. OBLIGATIONS OF FIRST SEISMIC.
Whenever required under Section 2 to use reasonable efforts to
effect the registration of any Registrable Shares, First Seismic shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Shares and use reasonable efforts to
cause such registration statement to become and remain effective;
provided, however, that the First Seismic shall have no obligation to
maintain the effectiveness of any registration statement filed
hereunder or to cause the information therein to remain current for
more than 90 days following such registration statement's effective
date in the case of an underwritten public offering or for longer than
such period as is customary and is required by the underwriter in the
case of a firmly underwritten public offering.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to keep
such registration statement effective in order to dispose of the shares
registered thereunder in the manner described in the underwriting
agreement executed in connection therewith and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement; provided, however,
that First Seismic shall have no obligation to maintain the
effectiveness of any registration statement filed hereunder or to cause
the information therein to remain current for more than 90 days
following such registration statement's effective date in the case of
an underwritten public offering or for longer than such period as is
customary and is required by the underwriter in the case of a firmly
underwritten public offering.
(c) Furnish to the Holders registering securities in such
registration such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Shares owned by
the Holders.
(d) Use reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or "Blue Sky" laws of such jurisdictions as
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-3-
shall be reasonably appropriate for the distribution of the securities
covered by the registration statement; provided that First Seismic
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 jurisdictions.
(e) With respect to any registration initiated by First
Seismic pursuant to Section 2(b) hereof, First Seismic shall have the
right to withdraw such registration at any time at its sole discretion
without the consent or approval of any Holder including Registrable
Shares in such registration.
SECTION 4. EXPENSES OF REGISTRATION.
All expenses incurred in connection with a registration pursuant to
Section 2 or otherwise in which First Seismic permits a Holder to participate
(excluding underwriters' discounts and commissions applicable to Registrable
Shares), including all registration and qualification fees, printing and
accounting fees, and fees and disbursements of counsel for First Seismic and
the Holder, shall be borne by First Seismic.
Each Holder of Registrable Shares shall pay the underwriters'
discounts and commissions applicable to the securities sold by such Holder.
In addition, each selling Holder shall pay its own costs for experts or
professionals (other than counsel) employed by it or on its behalf in
connection with the registration of Registrable Shares. No Holder shall have
the right to cause First Seismic to employ any expert or professional to act
on behalf of First Seismic.
SECTION 5. UNDERWRITING REQUIREMENTS.
In connection with any offering involving an underwriting of shares
being issued by First Seismic, First Seismic shall not be required to include
any of the Holders' Registrable Shares in such underwriting unless the
Holders accept the terms of the underwriting as agreed upon between First
Seismic and the underwriters.
Additionally, First Seismic shall be required to include in such
piggy-back registration under Section 2(b) only such quantity of the
Registrable Shares as will not, in the judgement of the underwriters,
jeopardize the success of the offering by First Seismic. If, however, the
underwriters have consented to inclusion in any such offering of securities
of any person other than First Seismic, then the Holders shall be entitled to
include such number of their Registrable Shares in such underwriting pro rata
to the total number of shares of Common Stock owned by all of such persons
who are entitled to sell securities in such offering (such apportionment
shall not include securities offered by First Seismic for its own account).
Subject to the above, in all cases the Holders collectively shall have the
right to include Registrable Shares in any registration under Section 2(b)
in an aggregate amount equal to at least fifty percent (50%) of the shares of
Common Stock being sold by all selling stockholders in such public offering.
SECTION 6. INDEMNIFICATION.
(a) In the event of registration of any of the Registrable Shares
under the Securities Act, First Seismic will indemnify and hold harmless the
seller of such Registrable Shares, each underwriter of such
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-4-
Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act,
or otherwise against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange 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 statement or alleged untrue
statement of any material fact contained in any registration statement under
which such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the registration
statement, or any amendment or supplement to such registration statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and First Seismic will reimburse such
seller, underwriter, and each such controlling person for any legal or any
other expenses reasonably incurred by such seller, underwriter, or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that First
Seismic will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any untrue
statement or omission made in such registration statement, preliminary
prospectus or prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to First Seismic
through an instrument duly executed by or on behalf of such seller or
underwriter specifically for use in preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act, each seller of the Registrable Shares,
severally and not jointly, will indemnify and hold harmless First Seismic,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls First Seismic or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against losses, claims,
damages or liabilities, joint or several, to which First Seismic, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange 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 statement of a material fact contained in any
registration statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained in the registration statement, or any amendment or supplement to
the registration statement, or arise out of or are based upon any omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to
First Seismic by or on behalf of such seller, specifically for use in
connection with the preparation of such registration statement, prospectus,
amendment or supplement.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in
such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 6. After notice
from the Indemnifying Party to the Indemnified Party of its election to
assume the defense of such claim or litigation, the Indemnifying Party will
not be liable to such Indemnified Party for any legal or other
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-5-
expenses subsequently incurred by such Indemnified Party in connection with
the defense thereof other than reasonable costs of investigation, unless the
Indemnifying Party abandons the defense of such claim or litigation. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional, term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
SECTION 7. LOCKUP AGREEMENT.
In connection with any such registration, upon the request of the
underwriters managing any underwritten offering of Common Stock of First
Seismic, each Holder agrees not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any Registrable
Shares (other than those included in the registration) without the prior
written consent of such underwriters, as the case may be, for such period of
time (not to exceed 90 days) from the effective date of such registration as
the underwriters may specify.
SECTION 8. RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees that he will not sell, dispose of or
otherwise transfer any of the Registrable Shares except (i) upon registration
of such shares under the Securities Act, (ii) pursuant to Rule 144 under the
Securities Act or such comparable rules as shall from time to time be in
effect, or (iii) in a transaction exempt from the registration requirements
of the Securities Act. Each Holder agrees that First Seismic may issue stop
transfer instructions with respect to the restrictions contained herein on
the Registrable Shares.
(b) Each certificate representing the Registrable Shares shall bear
a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, UNLESS AND UNTIL SUCH SHARES
ARE REGISTERED UNDER SUCH ACT, OR SUCH STATE LAWS, OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED."
SECTION 9. TERMINATION OF FIRST SEISMIC'S OBLIGATIONS.
First Seismic will have no obligations pursuant to this Agreement
with respect to any request or requests made by any Holder who holds 10% or
less of the Registrable Shares held by him on the date hereof.
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-6-
SECTION 10. COVENANTS IN CONNECTION WITH FUTURE GRANTS OF REGISTRATION
RIGHTS.
From and after the date of this Agreement, First Seismic shall not enter into
any agreement with any holder or prospective holder of any securities of
First Seismic which provides for the granting to such holder of registration
rights unless the rights granted under such agreement are pari-pasu with the
rights of Holders hereunder or unless First Seismic first obtains the
Holders' of a majority of the Registrable Shares consent to the terms thereof.
SECTION 11. TRANSFER OF REGISTRATION RIGHTS.
The registration rights of Holders under this Agreement may be
assigned and transferred to any transferee purchasing Registrable Shares,
other than in a public offering pursuant to a registration statement, in an
amount equal to at least 50,000 Registrable Shares; provided, however, that
First Seismic is given written notice by the Holder at the time of such
transfer stating the name and address of the transferee and identifying the
Registrable Shares with respect to which the rights under this Agreement are
being assigned. This Agreement shall also be binding upon and enforceable by
the heirs, executors, or other personal representatives of the Holders and
the successors and assigns of First Seismic.
SECTION 12. MISCELLANEOUS.
(a) RELATIONSHIPS AND RIGHTS OF THE HOLDERS. The Holders agree that,
notwithstanding that certain Rights of each Holder herein may be affected by
similar Rights of other Holders the Holders shall, in respect of the
ownership of the Registrable Shares, not be related as, or deemed to be, a
partnership, joint venture, or other "group" for the purpose of acquiring,
holding, voting, or disposing of capital stock of First Seismic.
(b) HEADINGS. The headings, captions, and arrangements used herein
are, unless specified otherwise, for convenience only and shall not be deemed
to limit, amplify, or modify the terms hereof, nor affect the meaning thereof.
(c) NOTICES. Unless otherwise specifically provided, whenever this
agreement requires or permits any consent, approval, notice, request or
demand from one party to another, such communication must be in writing,
shall be sent by registered or certified mail, postage prepaid, return
receipt requested and shall be deemed to have been duly received upon receipt
by the person to whom it is addressed. For purposes hereof, until changed by
written notice pursuant hereto, the address for First Seismic is as follows,
and the address for each Holder is set forth on Schedule One:
First Seismic Corporation
0000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx XXX 00000
(d) GOVERNING LAW. THIS AGREEMENT IS BEING EXECUTED AND DELIVERED BY
A NUMBER OF THE PARTIES HERETO, AND IS INTENDED TO BE PERFORMED, IN THE STATE
OF DELAWARE, AND THE INTERNAL LAWS OF SUCH STATE AND OF THE UNITED STATES OF
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-7-
AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES HERETO AND THE
VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION HEREOF.
(e) INVALID PROVISIONS. If any provision hereof is held to be
illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision by its severance
here from. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, the parties hereto agree to add as a part hereof a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may
be possible and be legal, valid, and enforceable which preserves the same
economic benefits to the parties hereto.
(f) AMENDMENTS AND CONSENTS. This Agreement may be amended, or any
matter may be consented to, only by an instrument in writing executed by
authorized officers of First Seismic and Holders of a majority of the
Registrable Shares, and supplemented only by documents delivered or to be
delivered in accordance with the express terms hereof except that no
modification providing one or more Holders priority in registering such
Holder's or Holders' Registrable Shares or providing for the elimination of
registration rights shall be made without the consent of all Holders.
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-8-
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered to be effective as of the first above written.
FIRST SEISMIC CORPORATION
By:
------------------------------
Name:
Title:
XXXXXX OIL AND GAS COMPANY
By:
------------------------------
Name:
Title:
FIRST SEISMIC CORPORATION
REGISTRATION RIGHTS AGREEMENT
-9-
