REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.1
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of the 8th day of September, 2006 (the “Effective
Date”)
between Foothills Resources, Inc., a Nevada corporation (the “Company”),
and
TARH E&P Holdings, L.P., a Texas limited partnership (“TARH”).
RECITALS:
WHEREAS,
Foothills Texas, Inc., a Delaware corporation and a wholly owned subsidiary
of
the Company (“Sub”), and TARH executed that certain Purchase and Sale Agreement,
dated as of June 21, 2006, (the “Purchase
and Sale Agreement”),
whereby Sub has agreed to purchase (the “Acquisition”)
from
TARH all of TARH’s right, title and interest in certain Properties (as defined
in the Purchase and Sale Agreement).
WHEREAS,
the Acquisition is expected to close on
or
before September 30, 2006, or at such other time and place as the parties to
the
Purchase and Sale Agreement may agree (the “Closing
Date”);
WHEREAS,
as consideration for the purchase the Properties, Sub agreed in the Purchase
and
Sale Agreement, among other consideration, to deliver to TARH 1,605,345 shares
(the “Registrable
Securities”)
of the
Company’s common stock, par value $0.001 per share (the “Common
Stock”);
WHEREAS,
as a condition to the Purchase and Sale Agreement, the Company has agreed to
provide TARH with certain registration rights related to the Registrable
Securities that will be issued to TARH on the Closing Date on the terms set
forth herein; and
WHEREAS,
pursuant to certain Subscription and Registration Rights Agreements among the
Company and the purchasers signatory thereto dated April 6, 2006 and April
20,
2006, the Company is obligated to file a registration statement to register
for
resale the securities (the “PPO
Securities”)
sold to
investors in the private placement offering consummated in connection with
the
Company’s reverse merger transaction (the “Private
Placement Offering”).
NOW,
THEREFORE, in consideration of the mutual promises, representations, warranties,
covenants, and conditions set forth herein, the parties mutually agree as
follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Acquisition”
shall
have the meaning set forth in the Recitals.
“Agreement”
shall
have the meaning set forth in the introductory paragraph hereto.
“Approved
Market”
means
the NASD Over-The-Counter Bulletin Board, the NASDAQ National Market, the NASDAQ
Capital Market, the New York Stock Exchange, Inc.
or
the
American Stock Exchange, Inc.
“Blackout
Period”
means,
with respect to a registration, a period, in each case commencing on the day
immediately after the Company notifies TARH that it is required, pursuant to
Section 4(f), to suspend offers and sales of Registrable Securities during
which
the Company, in the good faith judgment of its board of directors, determines
(because of the existence of, or in anticipation of, any material acquisition,
financing activity, or other transaction involving the Company, or the
unavailability for reasons beyond the Company’s control of any required
financial statements, disclosure of information which is in its best interest
not to publicly disclose, or any other event or condition of similar
significance to the Company) that the Registration and distribution of the
Registrable Securities to be covered by such Registration Statement, if any,
would be seriously detrimental to the Company and its stockholders and ending
on
the earlier of (a) the date upon which the material non-public information
commencing the Blackout Period is disclosed to the public or ceases to be
material and (b) such time as the Company notifies TARH that the Company will
no
longer delay such filing of the Registration Statement, but in no event for
more
than ninety (90) days, recommence taking steps to make such Registration
Statement effective, or allow sales pursuant to such Registration Statement
to
resume.
“Business
Day”
means
any day of the year, other than a Saturday, Sunday, or other day on which the
Commission is required or authorized to close.
“Closing
Date”
shall
have the meaning set forth in the Recitals.
“Commission”
means
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
“Common
Stock”
shall
have the meaning set forth in the Recitals.
“Company”
shall
have the meaning set forth in the introductory paragraph hereto.
“Effective
Date”
shall
have the meaning set forth in the introductory paragraph hereto.
“Effectiveness
Period”
shall
have the meaning set forth in Section 4(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Holder”
means
TARH or any of TARH’s respective successors and Permitted Assignees who acquire
rights in accordance with this Agreement with respect to the Registrable
Securities directly or indirectly from TARH or from any Permitted
Assignee.
“Permitted
Assignee”
means
any of the partners or former partners of TARH as set forth in Schedule 1
attached hereto, or an entity that is controlled by, controls, or is under
common control with TARH.
2
“PPO
Securities”
shall
have the meaning set forth in the Recitals.
“Private
Placement Offering”
shall
have the meaning set forth in the Recitals.
“Purchase
and Sale Agreement”
shall
have the meaning set forth in the Recitals.
“Registrable
Securities”
means
the 1,605,345 shares of Common Stock issued to TARH in connection with the
Acquisition, and any shares of Common Stock issued with respect to such shares
of Common Stock pursuant to a stock split, stock dividend or similar corporate
event, but excluding (a) any Registrable Securities that have been publicly
sold
or may be sold immediately without registration under the Securities Act either
pursuant to Rule 144 of the Securities Act or otherwise, (b) any Registrable
Securities sold by TARH in a transaction pursuant to a registration statement
filed under the Securities Act or (c) any Registrable Securities that are at
the
time subject to an effective registration statement under the Securities
Act.
“Registration”
means
a
registration of Common Stock effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement. The terms “Register”
and
“Registered”
shall
have corollary meanings to “Registration” throughout this Agreement.
“Registration
Filing Date”
shall
have the meaning set forth in Section 3(a).
“Registration
Statement”
means
the registration statement that the Company is required to file pursuant to
this
Agreement to Register the Registrable Securities.
“Rule
144”
means
Rule 144 promulgated by the Commission under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated by the Commission under the Securities Act.
“Securities
Act”
means
the Securities Act of 1933, as amended, or any similar federal statute
promulgated in replacement thereof, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
“Sub”
shall
have the meaning set forth in the Recitals.
“TARH”
shall
have the meaning set forth in the introductory paragraph hereto.
“Trading
Day”
means
any day on which the national securities exchange, the NASDAQ Capital Market,
the NASDAQ National Market, the NASD Over the Counter Bulletin Board or such
other securities market or quotation system, which at the time constitutes
the
principal securities market for the Common Stock, is open for general trading
of
securities.
2. Term.
This
Agreement shall continue in full force and effect until the later of (i) a
period of two years from the Effective Date, and (ii) until the Company is
no longer required hereunder to keep a Registration Statement with respect
to
the Registrable Securities effective under the Securities Act, unless terminated
sooner hereunder. Notwithstanding the foregoing, the provisions of Sections
9,
10 and 11 shall survive any termination of this Agreement.
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3.
Mandatory
and Piggy Back Registration.
(a) Mandatory
Registration on Form SB-2.
As
promptly as reasonably practicable after the Closing Date, but in any event
not
later than 90 days after the Closing Date (the “Registration
Filing Date”),
the
Company shall file with the Commission a Registration Statement on Form SB-2,
or
other applicable form, relating to the resale by the Holders of all of the
Registrable Securities. In the event that, as of the Registration Filing Date,
the Company has not undertaken an obligation to register some or all of the
PPO
Securities, the Registration Filing Date shall be a date no later than 150
days
following the Company’s issuance of Registrable Securities to TARH. The Company
shall use its commercially reasonable best efforts to cause the Registration
Statement filed as to the Registrable Securities to be declared effective within
120 days after the Registration Filing Date if such Registration Statement
is
not reviewed by the Commission and within 150 days if the Commission reviews
such Registration Statement, in accordance with the provisions of Section 4
hereof. In addition to the foregoing, the Company undertakes to use commercially
reasonable efforts to include the Registrable Securities in the registration
statement registering the PPO Securities.
(b) Obligation
to Re-file or Supplement.
If the
Company should fail to maintain the effectiveness of the Registration Statement
registering for resale the Registrable Securities during the Effectiveness
Period, or upon the Company’s provision of notice to the Holders of the
happening of any event of the kind described in Section 4(f) and/or the
commencement of a Blackout Period, and such Holder’s discontinuance, pursuant to
Section 5, of the disposition of Registrable Securities registered under such
Registration Statement, the Company shall use its commercially reasonable best
efforts, as soon as reasonably practicable but in no event later than sixty
(60)
days, to take all steps necessary to cause a Registration Statement registering
the Registrable Securities to be filed with the Commission and become effective
for the public resale of the Registrable Securities by the Holders (and
otherwise complying with the provisions of this Agreement), and the
Effectiveness Period shall be extended for any such period during which such
effectiveness was not maintained and/or any period during which such Holder
was
required to discontinue such disposition of Registrable Securities.
4
(c) Piggyback
Registration.
If at
any time any Registrable Securities are not able to be resold pursuant to an
effective registration statement, and the Company proposes to register any
of
its Common Stock under the Securities Act, whether as a result of an offering
for its own account or the account of others (but excluding any registrations
to
be effected on Forms S-4 or S-8 or other applicable successor Forms), the
Company shall, each such time, give to the Holders twenty (20) days’ prior
written notice of its intent to do so, and such notice shall describe the
proposed registration and shall offer such Holders the opportunity to register
such number of Registrable Securities as each such Holder may request. Upon
the
written request of any Holder given to the Company within twenty (20) days
after
the receipt of any such notice by the Company, the Company shall include in
such
registration statement all or part of the Registrable Securities of such Holder,
to the extent requested to be registered. If a registration pursuant to Section
3(c) 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 Holders 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 3(c) to the contrary, the
Company shall only be required to include in such registration, to the extent
of
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 requested to be included in such
registration for the account of any stockholders of the Company (including
the
Holders), pro rata among such stockholders on the basis of the number of shares
of Common Stock that each of them has requested to be included in such
registration, and (ii) second, any shares of Common Stock proposed to be
included in such registration for the account of the Company.
In
connection with any offering involving an underwriting of shares, the Company
shall not be required under this Section 3(c) or otherwise to include the
Registrable Securities of any Holder therein unless such Holder 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.
4. Registration
Procedures.
The
Company will keep each Holder reasonably advised as to the filing and
effectiveness of the Registration Statement. At its expense with respect to
the
Registration Statement, the Company will:
(a) prepare
and file with the Commission with respect to the Registrable Securities, a
Registration Statement on Form SB-2, or any other form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and
which
form shall be available for the sale of the Registrable Securities in accordance
with the intended methods of distribution thereof, and use its commercially
reasonable efforts to cause such Registration Statement to become and remain
effective for a period of two years or for such shorter period ending on the
earlier to occur of (i) the sale of all Registrable Securities and (ii) the
availability under Rule 144(k) for the Holder to sell the Registrable Securities
(in either case, the “Effectiveness
Period”);
(b) if
a
Registration Statement is subject to review by the Commission, promptly respond
to all comments and diligently pursue resolution of any comments to the
satisfaction of the Commission;
(c) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection therewith as may
be
necessary to keep such Registration Statement effective during the Effectiveness
Period;
(d) furnish,
without charge, to each Holder of Registrable Securities covered by such
Registration Statement (i) a reasonable number of copies of such Registration
Statement (including any exhibits thereto other than exhibits incorporated
by
reference), each amendment and supplement thereto as such Holder may reasonably
request, (ii) such number of copies of the prospectus included in such
Registration Statement (including each preliminary prospectus and any other
prospectus filed under Rule 424 under the Securities Act) as such Holders may
reasonably request, in conformity with the requirements of the Securities Act,
and (iii) such other documents as such Holder may require to consummate the
disposition of the Registrable Securities owned by such Holder, but only during
the Effectiveness Period;
5
(e) use
its
commercially reasonable best efforts to Register or qualify such Registration
under such other applicable securities or blue sky laws of such jurisdictions
as
any Holder of Registrable Securities covered by such Registration Statement
reasonably requests and as may be necessary for the marketability of the
Registrable Securities (such request to be made by the time the applicable
Registration Statement is deemed effective by the Commission) and do any and
all
other acts and things necessary to enable such Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder; provided, however, that the Company shall 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, (ii) subject itself to taxation
in
any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction; provided further, that the Company shall use its reasonable
best efforts to Register or qualify such Registration under the applicable
securities or blue sky laws of at least those jurisdictions where the Company
was Registered or qualified under such laws for the Registration of the PPO
Securities;
(f) as
promptly as practicable after becoming aware of such event, notify each Holder
of Registrable Securities, the disposition of which requires delivery of a
prospectus relating thereto under the Securities Act, of the happening of any
event, which comes to the Company’s attention, that will after the occurrence of
such event cause the prospectus included in such Registration Statement, if
not
amended or supplemented, to contain an untrue statement of a material fact
or an
omission to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading and the Company shall promptly
thereafter prepare and furnish to such Holder a supplement or amendment to
such
prospectus (or prepare and file appropriate reports under the Exchange Act)
so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not contain an untrue statement of a material fact or
omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, unless suspension of the use of such
prospectus otherwise is authorized herein or in the event of a Blackout Period,
in which case no supplement or amendment need be furnished (or Exchange Act
filing made) until the termination of such suspension or Blackout
Period;
(g) comply,
and continue to comply during the Effectiveness Period, in all material respects
with the Securities Act and the Exchange Act and with all applicable rules
and
regulations of the Commission with respect to the disposition of all securities
covered by such Registration Statement;
(h) as
promptly as practicable after becoming aware of such event, notify each Holder
of Registrable Securities being offered or sold pursuant to the Registration
Statement of the issuance by the Commission of any stop order or other
suspension of effectiveness of the Registration Statement;
(i) use
its
best efforts to cause all the Registrable Securities covered by the Registration
Statement to be quoted on the NASD Over-The-Counter Bulletin Board or such
other
principal securities market on which securities of the same class or series
issued by the Company are then listed or traded; and
6
(j) provide
a
transfer agent and registrar, which may be a single entity, for the shares
of
Common Stock at all times.
5. Suspension
of Offers and Sales.
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 4(f) hereof or of the commencement
of an Blackout Period, such Holder shall discontinue the disposition of
Registrable Securities included in the Registration Statement until such
Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(f) hereof or notice of the end of the Blackout Period,
and, if so directed by the Company, such Holder shall deliver to the Company
(at
the Company’s expense) all copies (including, without limitation, any and all
drafts), other than permanent file copies, then in such Holder’s possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
6. Registration
Expenses.
The
Company shall pay all expenses in connection with any Registration obligation
provided herein, including, without limitation, all Registration, filing, stock
exchange fees, printing expenses, all fees and expenses of complying with
securities or blue sky laws, and the fees and disbursements of counsel for
the
Company and of its independent accountants; provided that, in any underwritten
Registration, each party shall pay for its own underwriting discounts and
commissions, fees of brokers and similar industry professionals and transfer
taxes. Except as provided in this Section and Section 9, the Company shall
not
be responsible for the expenses of any attorney or other advisor employed by
a
Holder.
7. Assignment
of Rights.
No
Holder may assign its rights under this Agreement to any party without the
prior
written consent of the Company; provided, however, that a Holder may assign
its
rights under this Agreement without such consent to a Permitted Assignee as
long
as (a) such transfer or assignment is effected in accordance with applicable
securities laws; (b) such transferee or assignee agrees in writing to
become subject to the terms of this Agreement; and (c) the Company is given
written notice by such Holder of such transfer or assignment, stating the name
and address of the transferee or assignee and identifying the Registrable
Securities with respect to which such rights are being transferred or
assigned.
8. Information
by Holder.
Holders
included in any Registration shall furnish to the Company such information
as
the Company may from time to time reasonable request in writing regarding such
Holders and the distribution proposed by such Holders.
7
9. Indemnification.
(a) In
the
event of the offer and sale of Registrable Securities under the Securities
Act,
the Company shall, and hereby does, indemnify and hold harmless, to the fullest
extent permitted by law, each Holder, its members, directors, officers,
employees, partners and representatives, and each other person who participates
as an underwriter in the offering or sale of such securities, and each other
person, if any, who controls or is under common control with such Holder or
any
such underwriter within the meaning of Section 15 of the Securities Act, against
all expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including, without limitation, any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus (including a free writing
prospectus as defined in Rule 405 of the Securities Act), offering circular
or
other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading, or any violation (or alleged violation) by
the
Company of the Securities Act, the Exchange Act, any state securities law or
any
rule or regulation promulgated under any of the foregoing applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company shall reimburse each such Holder, each of its officers,
directors, partners, members and stockholders and each person controlling such
Holder, each such underwriter and each person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability
or
action, as such expenses are incurred; provided that the Company shall not
be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out
of
or is based upon an untrue statement in or omission from any such registration
statement, prospectus (including a free writing prospectus as defined in Rule
405 of the Securities Act), offering circular or other document, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
or
on behalf of such Holder specifically stating that it is for use in the
preparation thereof.
Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any Holder or any of its members, directors, officers,
employees, partners, representatives, or controlling persons and shall survive
the transfer by any Holder of such shares.
(b) As
a
condition to including Registrable Securities in any registration statement
filed pursuant to this Agreement, each Holder agrees to be bound by the terms
of
this Section 9 and to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its directors and officers, and each other
person, if any, who controls the Company within the meaning of Section 15 of
the
Securities Act, against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement)
of
a material fact contained in registration statement, prospectus (including
a
free writing prospectus as defined in Rule 405 of the Securities Act), offering
circular or other document, or any amendment or supplement thereto, or 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,
or
that arise out of or based upon any violation (or alleged violation) by such
Holder of the Securities Act, the Exchange Act, any state securities law or
any
rule or regulation promulgated under any of the foregoing applicable to the
Holder in connection with any such registration, qualification or compliance,
and will reimburse the Company, such Holders, such directors, officers, persons,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, as such expenses are incurred, in each case to
the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus (including a free writing prospectus as defined in Rule
405 of the Securities Act), offering circular or other document, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein. In no event shall any indemnity under this Section
9(b) (aggregated with any amounts paid in contribution pursuant to
Section 9(e)) exceed the net proceeds from the offering received by such
Holder.
Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
person and shall survive the transfer by any Holder of such shares.
8
(c) Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in this Section (including
any governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the
indemnifying party of the commencement of such action; provided 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, except to the extent
that the indemnifying parry is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party, unless
in the reasonable judgment of counsel to such indemnified party a conflict
of
interest between such indemnified and indemnifying parties may exist or the
indemnified party may have defenses not available to the indemnifying party
in
respect of such claim, the indemnifying party shall be entitled to participate
in and to assume the defense thereof, with counsel reasonably satisfactory
to
such indemnified party and, after notice from the indemnifying party to such
indemnified parry of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises
in
respect of such claim after the assumption of the defenses thereof or the
indemnifying party fails to defend such claim in a diligent manner, other than
reasonable costs of investigation. Neither an indemnified nor an indemnifying
party shall be liable for any settlement of any action or proceeding effected
without its consent. No indemnifying party shall, without the consent of the
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 of such claim or litigation. Notwithstanding anything
to
the contrary set forth herein, and without limiting any of the rights set forth
above, in any event any party shall have the right to retain, at its own
expense, counsel with respect to the defense of a claim.
(d) In
the
event that an indemnifying party does or is not permitted to assume the defense
of an action pursuant to Sections 9(c) or in the case of the expense
reimbursement obligation set forth in Sections 9(a) and (b), the indemnification
required by Sections 9(a) and (b) hereof shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as and
when bills received or expenses, losses, damages, or liabilities are
incurred.
9
(e) If
the
indemnification provided for in this Section is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any
loss,
liability, claim, damage or expense referred to herein, the indemnifying party,
in lieu of indemnifying such indemnified party hereunder, shall (i) contribute
to the amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage or expense as is appropriate to reflect the
proportionate relative fault of the indemnifying party on the one hand and
the
indemnified party on the other (determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
relates to information supplied by the indemnifying party or the indemnified
party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission), or (ii)
if
the allocation provided by clause (i) above is not permitted by applicable
law
or provides a lesser sum to the indemnified party than the amount hereinafter
calculated, not only the proportionate relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other,
as
well as any other relevant equitable considerations. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
10. Rule
144.
Until
the shorter of (a) 24 months following the Closing Date and (b) the day the
Holders no longer own any Registrable Securities, the Company will use its
commercially reasonable best efforts to timely file all reports required to
be
filed by the Company after the date hereof under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission thereunder,
and if the Company is not required to file reports pursuant to such sections,
it
will prepare and furnish to the Holders and make publicly available in
accordance with Rule 144(c) such information as is required for the Holders
to
sell shares of Common Stock under Rule 144.
11. Miscellaneous.
(a) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York and the United States of America, both substantive and
remedial, without regard to any choice or conflict of law principles thereof.
Any judicial proceeding brought against either of the parties to this agreement
or any dispute arising out of this Agreement or any matter related hereto shall
be brought in the courts of the State of New York, New York County, or in the
United States District Court for the Southern District of New York and, by
its
execution and delivery of this agreement, each party to this Agreement accepts
the jurisdiction of such courts. The foregoing consent to jurisdiction shall
not
be deemed to confer rights on any person other than the parties to this
Agreement.
(b) Successors
and Assigns.
Except
as otherwise provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, Permitted Assigns, executors and
administrators of the parties hereto. In the event the Company merges with,
or
is otherwise acquired by, a direct or indirect subsidiary of a publicly traded
company, the Company shall condition the merger or acquisition on the assumption
by such parent company of the Company’s obligations under this
Agreement.
(c) Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter hereof.
10
(d) Notices,
etc.
All
notices or other communications which are required or permitted under this
Agreement shall be in writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid, by electronic
mail, or by courier or overnight carrier, to the persons at the addresses set
forth below (or at such other address as may be provided hereunder), and shall
be deemed to have been delivered as of the date so delivered:
If
to the
Company to:
Foothills
Resources, Inc.
0000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx,
Xxxxxxxxxx 00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
with
copy to:
McGuireWoods
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxx
Phone:
(000) 000-0000
Fax: (000)
000-0000
If
to
TARH:
TARH
E&P Holdings, LP
00
Xxx
Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxx X. Xxxxxxxxx, President
Phone:
(000) 000-0000
Fax:
(000)
000-0000
or
at
such other address as any party shall have furnished to the other parties in
writing.
(e) Delays
or Omissions.
No
delay or omission to exercise any right, power or remedy accruing to any Holder,
upon any breach or default of the Company under this Agreement, shall impair
any
such right, power or remedy of such Holder nor shall it be construed to be
a
waiver of any such breach or default, or an acquiescence therein, or of or
in
any similar breach or default thereunder occurring; nor shall any waiver of
any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval
of
any kind or character on the part of any Holder of any breach or default under
this Agreement, or any waiver on the part of any Holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only
to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
11
(f) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
enforceable against the parties actually executing such counterparts, and all
of
which together shall constitute one instrument. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid
and
binding obligation of the party executing (or on whose behalf such signature
is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
(g) Severability.
In the
case any provision of this Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall
not
in any way be affected or impaired thereby.
(h) Amendments.
The
provisions of this Agreement may be amended at any time and from time to time,
and particular provisions of this Agreement may be waived, with and only with
an
agreement or consent in writing signed by the Company.
12
This
Registration Rights Agreement is hereby executed as of the date first above
written.
|
FOOTHILLS
RESOURCES, INC.
|
|
|
|
|
|
|
|
|
By:
/s/ Xxxxxx
X.
Tower
|
|
|
Name: Xxxxxx
X. Tower
|
|
|
Its:
Chief
Executive Officer
|
|
|
|
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TARH
E&P HOLDINGS, L.P.
|
|
|
|
|
|
|
|
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By:
/s/ Xxxxx
X.
Xxxxxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxxxxx
|
|
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Its: President
|
13
