REGISTRATION RIGHTS AGREEMENT
Exhibit
10.10
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of
September 10, 2007, by and among Gulf Western Petroleum Corporation, a Nevada
corporation, with principal office located at 0000 Xxxxxxx Xxxxx, Xxxxx 000X,
Xxxxxxx, Xxxxx 00000 (the “Company”), and Metage
Funds Limited, 0 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx, X0X 0XX, and NCIM Capital
Limited, 5th
Floor, Manfield House, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx XX0X OLR (each,
a
“Buyer,” and collectively,
“Buyer”).
WHEREAS:
A. In
connection with the Securities Purchase Agreement by and among the parties
hereto of even date herewith (the “Securities Purchase
Agreement”), the Company has agreed, upon the terms and subject to the
conditions of the Securities Purchase Agreement, to issue and sell at the
Closing (as defined in the Securities Purchase Agreement) to the Buyer (i)
senior secured convertible notes of the Company (such notes collectively, as
they may be amended, restated or modified and in effect from time to time,
the
“Note”), which will be convertible into shares of the Company’s
common stock, $0.001 par value per share (the “Common Stock”),
in accordance with the terms of the Note (the shares of Common Stock issuable
upon conversion of the Note being referred to as the “Conversion
Shares”), (ii) a warrant to purchase shares of Common Stock (such
warrant, as the same may be amended, restated or modified and in effect from
time to time, the “Warrant”; and the shares of Common Stock
issuable upon exercise of the Warrant being referred to herein as the
“Warrant Shares”); and (iii) 1,500,000 shares of Common Stock
(the “Closing Shares”).
B. To
induce Buyer to execute and deliver the Securities Purchase Agreement,
contemporaneously with the execution of the Securities Purchase Agreement,
the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the “1933 Act”), and
applicable state securities laws.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the Buyers
hereby agree as follows:
1. DEFINITIONS.
As
used
in this Agreement, the following terms shall have the following
meanings:
a. “1934
Act” means, collectively, the Securities and Exchange Act of 1934, as
amended, and the rules and regulations hereunder, or any similar successor
statutes.
b. “Additional
Effectiveness Date” means the date an Additional Registration Statement
is declared effective by the SEC.
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c. “Additional
Filing Date” means the date on which an Additional Registration
Statement is filed with the SEC.
d. “Additional
Filing Deadline” means, if Cutback Shares are required to be included
in an Additional Registration Statement, the date that is the later of
(i) the later of (A) six (6) months from the Initial Effectiveness
Date or the last Additional Effectiveness Date, as applicable, and
(B) sixty (60) days after substantially all of the Registrable
Securities held by the Investors included in any Registration Statements
previously declared effective hereunder have been sold and the Company has
been
informed of such sale pursuant to Section 4(d) hereof, or (ii) the first
date on which the Company is permitted by the SEC to register such Cutback
Shares.
e. “Additional
Registrable Securities” means, (i) any Cutback Shares not previously
included in a Registration Statement and (ii) any shares of capital stock of
the
Company issued or issuable with respect to such Cutback Shares, as applicable,
as a result of any stock split, stock dividend, recapitalization, exchange
or
similar event or otherwise, without regard to any limitations on conversions
of
Note or exercises of the Warrant.
f. “Additional
Registration Statement” means a registration statement or registration
statements of the Company filed under the 1933 Act covering any Additional
Registrable Securities.
g. “Additional
Required Registration Amount” means the lesser of (i) any Cutback
Shares not previously included in a Registration Statement, without regard
to
any limitations on conversions of the Note or exercises of the Warrant, and
(ii)
such number of Registrable Securities as the Company is permitted by the SEC
to
register as a secondary offering by an Investor.
h. “Business
Day” means any day other than Saturday, Sunday or any other day on
which commercial banks in New York, New York are authorized or required by
law
to remain closed.
i. “Cutback
Shares” means any of the Initial Registrable Securities not included in
all Registration Statements previously declared effective hereunder as a result
of a limitation on the maximum number of shares of Common Stock of the Company
permitted by the SEC to be registered as a secondary offering by an
Investor.
j. “Effectiveness
Date” means the Initial Effectiveness Date or an Additional
Effectiveness Date, as applicable.
k. “Effectiveness
Deadline” means the Initial Effectiveness Deadline or an Additional
Effective Deadline, as applicable.
l. “Filing
Deadline” means the Initial Filing Deadline (as defined below) or an
Additional Filing Deadline, as applicable.
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m. “Initial
Effectiveness Date” means the date the Initial Registration Statement
is declared effective by the SEC.
n. “Initial
Effectiveness Deadline” means the date that is 120 days after the
Closing Date or, if the Initial Registration Statement is subject to a full
review by the staff of the SEC, the date that is 150 days after the Closing
Date.
o. “Initial
Filing Date” means the date on which the Initial Registration Statement
is filed with the SEC.
p. “Initial
Filing Deadline” means the date that is sixty (60) days after the
Closing Date.
q. “Initial
Registrable Securities” means (i) the Conversion Shares issued or
issuable upon conversion of the Note , (ii) the Warrant Shares issued or
issuable upon exercise of the Warrant; (iii) the Closing Shares and (iv) any
shares of capital stock of the Company issued or issuable, with respect to
the
Note, the Conversion Shares, the Warrant, the Warrant Shares or the Closing
Shares as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard to any limitations on
conversions of the Note or exercises of the Warrant.
r. “Initial
Required Registration Amount” means the lesser of (i) the sum of (A)
the number of Conversion Shares issued or issuable pursuant to the Note as
of
the trading day immediately preceding the applicable date of determination,
at
the then prevailing Conversion Rate (as defined in the Note) and without regard
to any limitations on conversions of the Note, (B) the number of Warrant Shares
issued and issuable pursuant to the Warrant as of the trading day immediately
preceding the applicable date of determination, without regard to any
limitations on conversions of the Warrant and (C) the Closing Shares, or (ii)
such maximum number of shares of Common Stock as the Company is permitted to
register by the SEC.
s. “Initial
Registration Statement” means a registration statement or registration
statements of the Company filed under the 1933 Act pursuant to Section 2(a)
hereof covering the Initial Registrable Securities.
t. “Investor”
means a Buyer or any permitted transferee or assignee thereof to whom
a
Buyer assigns its rights under this Agreement and who agrees to become bound
by
the provisions of this Agreement in accordance with Section 9.
u. “Person”
means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
v. “Register,”
“registered,” and “registration” refer to a
registration effected by preparing and filing one or more Registration
Statements in compliance with the 1933 Act and pursuant to the declaration
or
ordering of effectiveness of such Registration Statement(s) by the
SEC.
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w. “Registrable
Securities” means the Initial Registrable Securities and any Additional
Registrable Securities.
x. “Registration
Statement” means a registration statement or registration statements of
the Company filed under the 1933 Act covering Registrable
Securities.
y. “Required
Holders” means the holders of at least two-thirds of the Registrable
Securities, it being understood that “holders” for purposes of this definition
shall not include the Company or any of its affiliates that subsequently acquire
any of the Registrable Securities.
z. “Required
Registration Amount” means either the Initial Required Registration
Amount or an Additional Required Registration Amount, as
applicable.
aa. “SEC”
means the United States Securities and Exchange Commission.
Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Securities Purchase Agreement.
2. REGISTRATION.
a. Initial
Mandatory Registration. The Company shall prepare, and file by
the Initial Filing Deadline, a Registration Statement on Form S-3 covering
the
resale of the Initial Registrable Securities as a secondary offering by the
Investors. In the event that Form S-3 is unavailable for such a
registration, the Company shall use such other form as is available for such
a
registration. The Initial Registration Statement prepared pursuant
hereto shall register for resale at least the number of shares of Common Stock
equal to the Initial Required Registration Amount determined as of date the
Registration Statement is initially filed with the SEC (subject to subsequent
reduction if directed by the staff of the SEC). The Company shall use
commercially reasonable efforts to have the Initial Registration Statement
declared effective by the SEC by the Initial Effectiveness
Deadline. In the event that the staff of the SEC does not permit any
part of the Initial Registrable Securities to be registered as a secondary
offering by the Investors (as opposed to a primary offering by the Company),
the
Company shall not be deemed to be in breach of this Section 2(a), but rather
Section 2(b) shall apply to the Initial Registrable Securities.
b. Additional
Mandatory Registrations The Company shall prepare, and, as soon
as practicable, but in no event later than each Additional Filing Deadline,
file
with the SEC an Additional Registration Statement on Form S-3 covering the
resale of the Additional Registrable Securities as a secondary offering by
the
Investors not previously registered on a Registration Statement
hereunder. To the extent the staff of the SEC does not permit the
Additional Required Registration Amount to be registered on an Additional
Registration Statement as a secondary offering by the Investors, the Company
shall file Additional Registration Statements successively trying to register
on
each such Additional Registration Statement the maximum number of remaining
Additional Registrable Securities until the Additional Required Registration
Amount has been registered with the SEC. In the event that Form S-3
is unavailable for such a registration, the Company shall use such other form
as
is available for such a registration and reasonably acceptable to the Required
Holders, subject to the provisions of Section 2(e). Each Additional
Registration Statement prepared pursuant hereto shall register for resale at
least that number of shares of Common Stock equal to the Additional Required
Registration Amount as of date the Registration Statement is initially filed
with the SEC. The Company shall use commercially reasonable efforts
to have each Additional Registration Statement declared effective by the SEC
as
soon as practicable following the filing thereof, but in any event not later
than 90 days following the filing thereof, or, if the Additional Registration
Statement is subject to a full review by the staff of the SEC, the date that
is
120 days after the filing thereof (an “Additional Effectiveness
Deadline”). Such requirement to file an Additional
Registration Statement shall terminate on the date as of which the Investors
may
sell all of such Additional Registrable Securities without restriction pursuant
to Rule 144(k) (or successor thereto) promulgated under the 1933 Act, as such
rule may be amended from time to time, or such shares are otherwise eligible
for
resale without the requirement for compliance with Rule 144(e), as such rule
may
be amended from time to time
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c. Allocation
of Registrable Securities. The initial number of Registrable
Securities included in any Registration Statement and any increase in the number
of Registrable Securities included therein shall be allocated pro rata among
the
Investors based on the number of Registrable Securities held by each Investor
at
the time the Registration Statement covering such initial number of Registrable
Securities or increase thereof is declared effective by the SEC. In
the event that an Investor sells or otherwise transfers any of such Investor’s
Registrable Securities, each transferee shall be allocated a pro rata portion
of
the then remaining number of Registrable Securities included in such
Registration Statement for such transferor. Any shares of Common
Stock included in a Registration Statement and which remain allocated to any
Person that ceases to hold any Registrable Securities covered by such
Registration Statement shall be allocated to the remaining Investors, pro rata
based on the number of Registrable Securities then held by such Investors which
are covered by such Registration Statement. In no event shall the
Company include any securities other than Registrable Securities in any
Registration Statement without the prior written consent of the Required
Holders.
d. Legal
Counsel. Subject to Section 5 hereof, the Required Holders shall
have the right to select one legal counsel to review and oversee any
registration pursuant to this Section 2 (“Legal
Counsel”).
e. Ineligibility
for Form S-3. In the event that Form S-3 is not available for the
registration of the resale of Registrable Securities hereunder, the Company
shall (i) register the resale of the Registrable Securities on Form SB-2 or
another appropriate form reasonably acceptable to the Required Holders and
(ii)
undertake to register the Registrable Securities on Form S-3 (by post-effective
amendment to the existing Registration Statement, or otherwise) as soon as
such
form is available for such registration, provided that the Company shall
maintain the effectiveness of the existing Registration Statement then in effect
until such time as a Registration Statement (or post-effective amendment) on
Form S-3 covering the Registrable Securities has been declared effective by
the
SEC.
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f. Effect
of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement.
i. If
(i) a Registration Statement covering Registrable Securities and required to
be
filed by the Company pursuant to Section 2(a) or Section 2(b) of this Agreement
is not (A) filed with the SEC on or before the applicable Filing Deadline
or (B) declared effective by the SEC on or before the applicable Effectiveness
Deadline or (ii) on any day after a Registration Statement has been declared
effective by the SEC, sales of all the Registrable Securities required to be
included on such Registration Statement cannot be made (other than during an
Allowable Grace Period (as defined in Section 3(q))) pursuant to such
Registration Statement (including because of a failure to keep such Registration
Statement effective, to disclose such information as is necessary for sales
to
be made pursuant to such Registration Statement or to register sufficient shares
of Common Stock, as determined in accordance with Section 2(e)), then, as
liquidated damages to any holder of Note or Warrant by reason of any such delay
in or reduction of its ability to sell the underlying shares of Common Stock,
the Company shall pay to such holder an amount in cash equal to the product
of
(i) the sum of (A) the principal amount of the Note held by such holder and
(B)
the total Aggregate Exercise Price (as defined in the Warrant) of all Warrant
held by such holder, multiplied by (ii) the sum of (A) 0.01, if such
Registration Statement is not filed by the applicable Filing Deadline, plus
(B)
0.01, if such Registration Statement is not declared effective by the applicable
Effectiveness Deadline, plus (C) the product of (I) 0.000333 multiplied by
(II)
the sum (without duplication) of (x) the number of days after the applicable
Filing Deadline that such Registration Statement is not filed with the SEC,
plus
(y) the number of days after the applicable Effectiveness Deadline that such
Registration Statement is not declared effective by the SEC, plus (z) the number
of days after such Registration Statement has been declared effective by the
SEC
that such Registration Statement is not available (other than during an
Allowable Grace Period) for the sale of all the Registrable Securities required
to be included on such Registration Statement pursuant to Section 2(e);
provided, however, that in no event shall such liquidated damages exceed an
aggregate of $150,000.
ii. The
payments to which a holder shall be entitled pursuant to this Section 2(f)
are
referred to herein as “Registration Delay
Payments.” Registration Delay Payments shall be paid on the
earlier of (I) the fifth Business Day of the calendar month following the month
during which the Registration Delay Payment are incurred and (II) fifth Business
Day after the event or failure giving rise to the Registration Delay Payments
is
cured. In the event the Company fails to make Registration Delay
Payments in a timely manner, such Registration Delay Payments shall bear
interest at the rate of the lesser of 18.0% per annum (prorated monthly and
for
partial months) or the highest lawful interest rate, in each case, until paid
in
full. Such payments shall constitute an Investor’s exclusive monetary
remedy for such events.
3.
RELATED
OBLIGATIONS.
At
such
time as the Company is obligated to file a Registration Statement with the
SEC
pursuant to Section 2(a) or 2(b), the Company will use
commercially reasonable efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and,
pursuant thereto, the Company shall have the following obligations:
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a. The
Company shall promptly prepare and file with the SEC a Registration Statement
with respect to the applicable Registrable Securities (but in no event later
than the applicable Filing Deadline) and use commercially reasonable efforts
to
cause such Registration Statement relating to the Registrable Securities to
become effective as soon as practicable after such filing (but in no event
later
than the applicable Effectiveness Deadline). No later than the first
Business Day after such Registration Statement becomes effective, the Company
will file with the SEC the final prospectus included therein pursuant to Rule
424 (or successor thereto) promulgated under the 1933 Act. The
Company shall keep each Registration Statement effective at all times until
the
earlier of (i) the date as of which the Investors may sell all of the
Registrable Securities covered by such Registration Statement without
restriction pursuant to Rule 144(k) (or successor thereto) promulgated under
the
1933 Act, as such rule may be amended from time to time, or such shares are
otherwise eligible for resale without the requirement for compliance with Rule
144(e) (and assuming the Investors do not enter into hedging transactions with
respect to the Shares), as such rule may be amended from time to time or (ii)
the date on which the Investors shall have sold all the Registrable Securities
covered by such Registration Statement and given the notice to the Company
required by Section 4(d) hereof (the “Registration
Period”). Such Registration Statement (including any
amendments or supplements thereto and any prospectuses (preliminary, final,
summary or free writing) contained therein or related thereto shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein,
in
light of the circumstances in which they were made, not
misleading. The term “commercially reasonable efforts” shall mean,
among other things, that the Company shall submit to the SEC, within a
reasonable time after the Company learns that no review of a particular
Registration Statement will be made by the staff of the SEC or that the staff
of
the SEC has no further comments on the Registration Statement, as the case
may
be, a request for acceleration of effectiveness of such Registration Statement
to a time and date not later than 48 hours after the submission of such
request.
b. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, as may be
necessary to keep such Registration Statement effective at all times during
the
Registration Period, and, during such period, comply with the provisions of
the
1933 Act with respect to the disposition of all Registrable Securities of the
Company covered by such Registration Statement until such time as all of such
Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth
in
such Registration Statement. In the case of amendments and
supplements to a Registration Statement which are required to be filed pursuant
to this Agreement (including pursuant to this Section 3(b)) by reason of
the Company filing a report on Form 10-QSB, Form 10-KSB or any
analogous report under the 1934 Act, or for any other reason due to the
inability of the Company to incorporate by reference information into the
Registration Statement, the Company shall have incorporated such report by
reference into such Registration Statement, if applicable, or shall file such
amendments or supplements with the SEC within seven Business Days after the
1934
Act report is filed, or other event occurs, which created the requirement for
the Company to amend or supplement such Registration Statement.
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c. The
Company shall (A) permit Legal Counsel to review and comment upon (i) the
Initial Registration Statement at least three Business Days prior to its filing
with the SEC, and (ii) all other Registration Statements and all amendments
and
supplements to all Registration Statements (except for Annual Reports on Form
10-K or 10-KSB, Quarterly Reports on Form 10-Q or 10-QSB, and Current Reports
on
Form 8-K, and any similar or successor reports) within a reasonable number
of
days prior to their filing with the SEC, and (B) not file any document,
registration statement, amendment or supplement described in the foregoing
clause (A) in a form to which Legal Counsel reasonably objects. The Company
shall not submit a request for acceleration of the effectiveness of a
Registration Statement or any amendment or supplement thereto without providing
prior notice thereof to Legal Counsel.
d. The
Company shall notify each Investor whose Registrable Securities are included
in
any Registration Statement: (i) promptly after the same, and promptly after
any
amendment(s) thereto, are prepared and filed with the SEC and (ii) upon the
effectiveness of any Registration Statement. The Company shall
provide a copy to each Investor, free of charge, of any prospectus (preliminary,
final, summary or free writing), as such Investor may reasonably request from
time to time in order to facilitate the disposition of the Registrable
Securities owned by such Investor.
e. The
Company shall use commercially reasonable efforts to (i) to register and
qualify, unless an exemption from registration and qualification applies, the
resale by the Investors of the Registrable Securities covered by a Registration
Statement under the securities laws of the United States, (ii) prepare and
file,
such amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not
be
required in connection therewith or as a condition thereto to (x) qualify to
do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(e) or (y) subject itself to general taxation in
any such jurisdiction. The Company shall promptly notify Legal
Counsel in writing and each Investor who holds Registrable Securities of the
receipt by the Company of any notification with respect to the suspension of
the
registration or qualification of any of the Registrable Securities for sale
under the securities laws of any jurisdiction in the United States or its
receipt of actual notice of the initiation or threatening of any proceeding
for
such purpose.
f. The
Company shall notify Legal Counsel and each Investor in writing of the happening
of any event, as promptly as practicable after becoming aware of such event,
as
a result of which the prospectus included in a Registration Statement, as then
in effect, includes an untrue statement of a material fact or omission to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (provided that in no event shall such notice contain any
material, nonpublic information), and promptly after the ascertainment of
material facts and circumstances, prepare and file with the SEC a supplement
or
amendment to such Registration Statement to correct such untrue statement or
omission, and deliver at least one copy of such supplement or amendment to
Legal
Counsel and each Investor. The Company shall also promptly notify
Legal Counsel and each Investor in writing (i) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and when
a
Registration Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to Legal Counsel and
each
Investor by facsimile on the same day of such effectiveness and by overnight
mail), (ii) of any request by the SEC for amendments or supplements to a
Registration Statement or related prospectus or related information, and (iii)
of the Company’s reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
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g. The
Company shall use commercially reasonable efforts to prevent the issuance of
any
stop order or other suspension of effectiveness of a Registration Statement,
or
the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension at the earliest possible
moment and to notify Legal Counsel and each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
h. At
the reasonable request (in the context of the securities laws) of any Investor,
the Company shall make available for inspection during regular business hours
by
(i) any Investor, (ii) Legal Counsel and (iii) one firm of accountants or
other agents retained by the Investors (collectively, the
“Inspectors”), all pertinent financial and other records, and
pertinent corporate documents and properties of the Company (collectively,
the
“Records”), as shall be reasonably deemed necessary by each
Inspector, and cause the Company’s officers, directors and employees to supply
all information which any Inspector may reasonably request; provided, however,
that each Inspector and Investor shall agree in writing in a form reasonably
requested by the Company, to hold in strict confidence and shall not make any
disclosure (except to an Investor) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (a) the disclosure of
such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the 1933 Act, (b) the
release of such Records is ordered pursuant to a final, non-appealable subpoena
or order from a court or government body of competent jurisdiction, or (c)
the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement of which
the Inspector has knowledge. Each Investor agrees that it shall, upon
learning that disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential.
i. The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, or is otherwise required
by the 1933 Act, (iii) the release of such information is ordered pursuant
to a
subpoena or order from a court or governmental body of competent jurisdiction,
or (iv) such information has been made generally available to the public other
than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that
disclosure of such information concerning an Investor is sought in or by a
court
or governmental body of competent jurisdiction or through other means, give
prompt written notice to such Investor and allow such Investor, at the
Investor’s expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, such information.
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j. The
Company shall use commercially reasonable efforts to cause all the Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange or trading market on which securities of the same class or series
issued by the Company are listed. The Company shall pay all fees and
expenses in connection with satisfying its obligation under this Section
3(j).
k. The
Company shall cooperate with the Investors who hold Registrable Securities
being
offered and sold and, to the extent applicable, facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legend)
representing the Registrable Securities sold pursuant to a Registration
Statement and enable such certificates to be in such denominations or amounts,
as the case may be, as the Investors may reasonably request and registered
in
such names as the Investors may request. The Company shall pay all
fees and expenses in connection with satisfying its obligations under this
Section 3(k).
l. The
Company shall provide a transfer agent and registrar of all such Registrable
Securities not later than the effective date of the applicable Registration
Statement.
m. If
requested by an Investor, the Company shall (i) as soon as practicable,
incorporate in a prospectus supplement or post-effective amendment such
information as such Investor requests to be included therein relating to the
sale and distribution of Registrable Securities, including information with
respect to such Investor, the number of Registrable Securities being offered
or
sold, the purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be sold in such offering; (ii) as soon as
practicable, make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as
soon as practicable, supplement or make amendments to any Registration Statement
as reasonably requested by such Investor.
n. The
Company shall make generally available to its security holders as soon as
practical, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the 0000 Xxx) covering a 12-month period beginning not later than
the
first day of the Company’s fiscal quarter next following the effective date of a
Registration Statement.
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o. The
Company and Investor shall otherwise use their respective commercially
reasonable efforts to comply with all applicable rules and regulations of the
SEC in connection with any registration hereunder.
p. Within
a reasonable time after a Registration Statement which covers applicable
Registrable Securities is ordered effective by the SEC, the Company shall
deliver to the transfer agent for such Registrable Securities (with copies
to
the Investors whose Registrable Securities are included in such Registration
Statement) confirmation that such Registration Statement has been declared
effective by the SEC in substantially the form attached hereto as Exhibit
A, provided that if the Company changes its transfer agent, it shall
immediately deliver any previously delivered notices under this Section
3(r) and any subsequent notices to such new transfer agent.
q. Notwithstanding
anything to the contrary in Section 3(f), at any time after the
applicable Registration Statement has been declared effective by the SEC, the
Company may delay the disclosure of material non-public information concerning
the Company the disclosure of which at the time is not, in the good faith
opinion of the Board of Directors of the Company, in the best interest of the
Company and not, in the opinion of counsel to the Company, otherwise required
(a
“Grace Period”); provided, that the Company shall promptly
(i) notify the Investors in writing of the existence of material non-public
information giving rise to a Grace Period (provided that in each notice the
Company shall not disclose the content of such material non-public information
to the Investors) and the date on which the Grace Period will begin, and (ii)
notify the Investors in writing of the date on which the Grace Period ends;
and,
provided further, that (A) no Grace Period shall exceed 30 consecutive days,
(B)
during any 365-day period, such Grace Periods shall not exceed an aggregate
of
60 days and (C) the first day of any Grace Period must be at least five Trading
Days after the last day of any prior Grace Period (a Grace Period that satisfies
all of the requirements of this Section 3(q) being referred to as an
“Allowable Grace Period”). For purposes of
determining the length of a Grace Period above, the Grace Period shall begin
on
and include the date the Investors receive the notice referred to in clause
(i)
and shall end on and include the later of the date the Investors receive the
notice referred to in clause (ii) and the date referred to in such
notice. The provisions of Section 3(f) hereof shall not
be applicable during the period of any Allowable Grace Period. Upon
expiration of the Grace Period, the Company shall again be bound by the
provisions of Section 3(f) with respect to the information giving rise
thereto unless such material non-public information is no longer
applicable.
4.
OBLIGATIONS OF
THE INVESTORS.
a. At
least ten Business Days prior to the first anticipated filing date of a
Registration Statement and at least ten Business Days prior to the filing of
any
amendment or supplement to a Registration Statement, the Company shall notify
each Investor in writing of the information, if any, the Company requires from
each such Investor if such Investor elects to have any of such Investor’s
Registrable Securities included in such Registration Statement or, with respect
to an amendment or a supplement, if such Investor’s Registrable Securities are
included in such Registration Statement (each an “Information
Request”). Provided that the Company shall have complied with its
obligations set forth in the preceding sentence, it shall be a condition
precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable Securities of a
particular Investor that such Investor shall furnish to the Company, in response
to an Information Request, such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request.
11
b. Each
Investor, by such Investor’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder, unless
such Investor has notified the Company in writing of such Investor’s election to
exclude all of such Investor’s Registrable Securities from such Registration
Statement.
c. Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(b), Section
3(g) or the first sentence of Section 3(f), or written notice from
the Company of an Allowable Grace Period, such Investor will immediately
discontinue disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until such Investor’s receipt
of the copies of the supplemented or amended prospectus contemplated by
Section 3(g) or the first sentence of Section 3(f) or receipt of
notice that no supplement or amendment is required or that the Allowable Grace
Period has ended.
d. In
order for the Company to satisfy its obligations with respect to the Additional
Filing Deadline and to satisfy the requirements of Section 3(a) hereof,
each Investor shall be obligated to provide written notice to the Company of
any
sale that such Investor makes using the Registration Statement. Such
notice shall include the date of the sale, the amount of Registrable Securities
sold and the amount of Registrable Securities included in the Registration
Statement that such Investor continues to hold. If an Investor fails
to comply with the requirements of this Section 4(d), the Company shall
not be liable to such Investor for any potential liquidated damages resulting
from Section 2(g) hereof.
5.
EXPENSES
OF REGISTRATION.
All
reasonable expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to
Sections 2 and 3, including all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements
of
counsel for the Company shall be paid by the Company.
6.
INDEMNIFICATION.
In
the
event any Registrable Securities are included in a Registration Statement under
this Agreement:
12
a. To
the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Investor, the directors, officers,
partners, members, managers, employees, agents, representatives of, and each
Person, if any, who controls any Investor within the meaning of the 1933 Act
or
the 1934 Act (each, an “Indemnified Person”), against any
losses, claims, damages, liabilities, judgments, fines, penalties, charges,
costs, reasonable attorneys’ fees, amounts paid in settlement or expenses, joint
or several, (collectively, “Claims”) incurred in investigating,
preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC,
whether pending or threatened, whether or not an indemnified party is or may
be
a party thereto (“Indemnified Damages”), to which any of them
may become subject insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon:
(i)
any untrue statement or alleged untrue statement of a material fact in a
Registration Statement or any post-effective amendment thereto or in any filing
made in connection with the qualification of the offering under the securities
laws of the United States, or the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue statement
of
a material fact contained in any preliminary, final, summary or free writing
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, (iii) any violation or alleged violation by the Company
of
the 1933 Act, the 1934 Act, any other law, including any state securities law,
or any rule or regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement or (iv) any
violation of this Agreement by the Company (the matters in the foregoing clauses
(i) through (iv) being, collectively,
“Violations”). Subject to Section 6(c), the
Company shall reimburse the Indemnified Persons, promptly as such expenses
are
incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any
such
Claim; provided, however, that the Company shall not be required to pay the
fees
and expenses of more than one legal counsel for all
Investors. Notwithstanding anything to the contrary contained herein,
the indemnification agreement contained in this Section 6(a) shall not
apply to: (i) a Claim by an Indemnified Person arising out of or based upon
a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Person for such
Indemnified Person expressly for use in connection with the preparation of
the
Registration Statement or any such amendment thereof or supplement thereto
if
such prospectus was timely made available by the Company pursuant to Section
3(d), (ii) any Claim if the Indemnified Person failed to deliver a final or
preliminary prospectus as required by the 1933 Act, and (iii) shall not apply
to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9.
13
b. In
connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement, and each Person, if any, who
controls the Company within the meaning of the 1933 Act or the 1934 Act (each
an
“Indemnified Party”), against any Claim or Indemnified Damages
to which any of them may become subject, under the 1933 Act, the 1934 Act or
otherwise, insofar as such Claim or Indemnified Damages arise out of or are
based upon any Violation, in each case to the extent, and only to the extent,
that such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by such Investor, or such Investor’s
representatives, expressly for use in connection with such Registration
Statement; and, subject to Section 6(c), such Investor will reimburse any
legal or other expenses reasonably incurred by an Indemnified Party in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) and the
agreement with respect to contribution contained in Section 7 shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of such Investor, which consent shall not
be
unreasonably withheld; provided, further, however, that the aggregate liability
of the Investor in connection with any Violation shall not exceed the net
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to the Registration Statement giving rise to such Claim provided,
however, that the Investors shall not be required to pay the fees and expenses
of more than one legal counsel for the Company. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on
behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section
9.
c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this
Section 6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a Claim, such
Indemnified Person or Indemnified Party shall, if a Claim in respect thereof
is
to be made against any indemnifying party under this Section 6, deliver
to the indemnifying party a written notice of the commencement thereof, and
the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person
or
the Indemnified Party, as the case may be. In any such proceeding,
any Indemnified Person or Indemnified Party may retain its own counsel, but,
except as provided in the following sentence, the fees and expenses of that
counsel will be at the expense of that Indemnified Person or Indemnified Party,
as the case may be, unless (i) the indemnifying party and the Indemnified Person
or Indemnified Party, as applicable, shall have mutually agreed to the retention
of that counsel, (ii) the indemnifying party does not assume the defense of
such
proceeding in a timely manner or (iii) in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel for
the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. The Company, if it is the Indemnifying
Party, shall pay reasonable fees for only one separate legal counsel for the
Investors, and such legal counsel shall be selected by the Investors holding
at
least 2/3 in interest of the Registrable Securities included in the Registration
Statement to which the Claim relates. The Indemnified Party or
Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or Claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or Claim. The indemnifying party shall keep
the Indemnified Party or Indemnified Person fully apprised at all times as
to
the status of the defense or any settlement negotiations with respect
thereto. No indemnifying party shall be liable for any settlement of
any action, claim or proceeding effected without its prior written consent,
provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without
the prior written consent of the Indemnified Party or Indemnified Person,
consent to entry of any judgment or enter into any settlement or other
compromise with respect to any pending or threatened action or claim in respect
of which indemnification or contribution may be or has been sought hereunder
(whether or not the Indemnified Party or Indemnified Person is an actual or
potential party to such action or claim) which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim or litigation and such settlement shall not include any
admission as to fault on the part of the Indemnified Party. Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person with
respect to all third parties, firms or corporations relating to the matter
for
which indemnification has been made. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement
of
any such action shall not relieve such indemnifying party of any liability
to
the Indemnified Person or Indemnified Party under this Section 6, except
to the extent that the indemnifying party is prejudiced in its ability to defend
such action.
14
d. The
indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or Indemnified Damages are
incurred.
e. The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
7.
CONTRIBUTION.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to
the fullest extent permitted by law; provided, however, that: (i) no
Person involved in the sale of Registrable Securities which Person is guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) in connection with such sale, shall be entitled to contribution from
any Person involved in such sale of Registrable Securities who was not guilty
of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited to an amount equal to the amount of proceeds
received by such seller from the sale of such Registrable Securities pursuant
to
the Registration Statement giving rise to such action or claim for
indemnification less the amount of any damages that such seller has otherwise
been required to pay in connection with such sale.
15
8.
REPORTS UNDER THE
1934 ACT.
With
a
view to making available to the Investors the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that
may
at any time permit the Investors to sell securities of the Company to the public
without registration (“Rule 144”), the Company agrees
to:
a. make
and keep public information available, as those terms are understood and defined
in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents required of
the
Company under the 1934 Act so long as the Company remains subject to such
requirements (it being understood that nothing herein shall limit the Company’s
obligations under Section 4(c) of the Securities Purchase Agreement) and the
filing of such reports and other documents is required for the applicable
provisions of Rule 144; and
c. furnish
to each Investor so long as such Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied with
the reporting requirements of Rule 144 and the 1934 Act, (ii) a copy of the
most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may
be
reasonably requested to permit the investors to sell such securities pursuant
to
Rule 144 without registration.
9.
ASSIGNMENT
OF REGISTRATION RIGHTS.
The
rights under this Agreement shall be automatically assignable by the Investors
to any transferee of all or any portion of Registrable Securities if: (i) the
Investor agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such transfer or assignment; (ii) the Company is, within
a
reasonable time after such transfer or assignment, furnished with written notice
of (a) the name and address of such transferee or assignee, and (b) the
securities with respect to which such registration rights are being transferred
or assigned; (iii) immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted
under
the 1933 Act and applicable state securities laws; (iv) at or before the time
the Company receives the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing with the Company to
be
bound by all of the provisions contained herein; and (v) such transfer shall
have been made in accordance with the applicable requirements of the Securities
Purchase Agreement.
10. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders. Any amendment or waiver effected in accordance with this
Section 10 shall be binding upon each Investor and the
Company. No such amendment shall be effective to the extent that it
applies to less than all of the holders of the Registrable
Securities. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of
this
Agreement unless the same consideration also is offered to all of the parties
to
this Agreement.
16
11.
MISCELLANEOUS.
a. A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two
or
more Persons with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
b. Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party); or (iii) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
If
to the
Company:
Gulf
Western Petroleum Corporation
0000
Xxxxxxx Xxxxx
Xxxxx
000
X
Xxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxxx X. Xxxxxx
If
to the
Buyer:
Metage
Funds Limited
0
Xxxxxx
Xxxxxx,
Xxxxxx,
Xxxxxxx X0X 0XX
Attention:
Xxx Xxxxx
Facsimile:
00-00-0000-0000
17
HSBC
Bank
Plc
c/o
Brown
Brothers Xxxxxxxx & Co.
000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention: ________________
Fax: ____________________
or,
in
the case of a Buyer or other party named above, to such other address and/or
facsimile number and/or to the attention of such other person as the recipient
party has specified by written notice given to each other party at least 5
days
prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the sender’s
facsimile machine containing the time, date, recipient facsimile number and
an
image of the first page of such transmission or (C) provided by a courier or
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or deposit with a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above,
respectively.
c. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
d. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or
rule
(whether of the State of Texas or any other jurisdictions) that would cause
the
application of the laws of any jurisdictions other than the State of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the
state
and federal courts sitting the City of New York, Borough of Manhattan, New
York,
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
to
such party at the address for such notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY
HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR
ANY TRANSACTION CONTEMPLATED HEREBY.
18
e. This
Agreement and the other Transaction Documents constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and
therein. This Agreement and the other Transaction Documents supersede
all prior agreements and understandings among the parties hereto with respect
to
the subject matter hereof and thereof.
f. Subject
to the requirements of Section 9, this Agreement shall inure to the
benefit of and be binding upon the permitted successors and assigns of each
of
the parties hereto.
g. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
h. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to each other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if
the
signature were an original, not a facsimile signature.
i. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
j. All
consents and other determinations to be made by the Investors pursuant to this
Agreement shall be made, unless otherwise specified in this Agreement, by the
Required Holders, determined as if all of the Note and the Warrant then
outstanding have been converted into or exercised for Registrable Securities
without regard to any limitations on conversion of the Note or the exercise
of
the Warrant and, in the case of the Note, of the then-prevailing Conversion
Price. Any consent or other determination approved by Investors as
provided in the immediately preceding sentence shall be binding on all
Investors.
k. The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
l. Each
Buyer and each holder of the Securities shall have all rights and remedies
set
forth in the Transaction Documents and all rights and remedies that such Buyers
and holders have been granted at any time under any other agreement or contract
and all of the rights that such Buyers and holders have under any
law. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting
a bond or other security or proving actual damages), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
19
m. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns and, to the extent provided in Sections
6(a) and 6(b) hereof, each Investor, the directors, officers,
partners, members, managers, employees, agents, representatives of, and each
Person, if any, who controls any Investor within the meaning of the 1933 Act
and
the 1934 Act and each of the Company’s directors, each of the Company’s officers
who signs the Registration Statement, and each Person, if any, who controls
the
Company within the meaning of the 1933 Act and the 1934 Act, and is not for
the
benefit of, nor may any provision hereof be enforced by, any other
Person.
n. The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor, and no provision of this Agreement is
intended to confer any obligations on any Investor vis-à-vis any other
Investor. Nothing contained herein, and no action taken by any
Investor pursuant hereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Investors are in any way acting in concert or
as a
group with respect to such obligations or the transactions contemplated
herein.
o. Unless
the context otherwise requires, (a) all references to Sections, Schedules or
Exhibits are to Sections, Schedules or Exhibits contained in or attached to
this
Agreement, (b) each accounting term not otherwise defined in this Agreement
or
the Securities Purchase Agreement has the meaning assigned to it in accordance
with GAAP, (c) words in the singular or plural include the singular and plural
and pronouns stated in either the masculine, the feminine or neuter gender
shall
include the masculine, feminine and neuter and (d) the use of the word
“including” in this Agreement shall be by way of example rather than
limitation.
******
20
IN
WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above
written.
COMPANY:
GULF
WESTERN PETROLEUM CORPORATION
|
By:
|
/s/ Wm.
X. Xxx
|
|
|
Name:
|
Xxxxxxx
X. Xxx
|
|
|
Title:
|
Chairmand
and CEO
|
[Additional
signature page follows]
Signature
Page to Registration Rights Agreement
BUYER:
METAGE
FUNDS LIMITED
|
By:
|
/s/ Xxx
Xxxxx
|
|
|
Name:
|
Xxx
Xxxxx
|
|
|
Title:
|
Investment
Manager
|
NCIM
LIMITED
|
By:
|
/s/ X.X.
Xxxxxxx
|
|
|
Name:
|
X.X.
Xxxxxxx
|
|
|
Title:
|
Manager
|
Signature
Page to Registration Rights Agreement
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[TRANSFER
AGENT]
Attn:
Re: Gulf
Western Petroleum Corporation
Ladies
and Gentlemen:
We
are
counsel to Gulf Western Petroleum Corporation, a Nevada corporation (the
“Company”), and have represented the Company in connection with
that certain Securities Purchase Agreement (the “Purchase
Agreement”) entered into by and among the Company and the buyers named
therein (collectively, the “Holders”) pursuant to which the
Company issued to the Holders senior secured convertible Note (the
“Note”), convertible into shares of the Company’s common stock,
$0.001 par value per share (the “Common Stock”), and Warrant to
purchase shares of Common Stock, subject to adjustment (the
“Warrant”). Pursuant to the Purchase Agreement, the
Company also has entered into a Registration Rights Agreement with the Holders
(the “Registration Rights Agreement”) pursuant to which the
Company agreed, among other things, to register the Registrable Securities
(as
defined in the Registration Rights Agreement), including the shares of Common
Stock issuable upon conversion of the Note and exercise of the Warrant, under
the Securities Act of 1933, as amended (the “1933
Act”). In connection with the Company’s obligations under
the Registration Rights Agreement, on ____________ ___, 200_, the Company filed
a Registration Statement on Form [S-__] (File No.
333-_____________) (the “Registration Statement”) with the
Securities and Exchange Commission (the “SEC”) relating to the
Registrable Securities which names each of the Holders as a selling stockholder
thereunder.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone [that we have confirmed through the SEC’s website]
that the SEC has entered an order declaring the Registration Statement effective
under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on
[ENTER DATE OF EFFECTIVENESS] and we have no knowledge that any
stop order suspending its effectiveness has been issued or that any proceedings
for that purpose are pending before, or threatened by, the SEC.
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Very
truly yours,
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[ISSUER’S
COUNSEL]
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By:
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