EXHIBIT 10.47
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of September
20th, 2005, is made and entered into by and between Far East Energy Corporation
("Company") and Xxxxxx Xxxxxx & Company, Inc. ("Xxxxxx Xxxxxx") for the benefit
of the purchasers of the Company's common stock, par value $0.001 per share
("Company Common Stock") as investors (the "Investors") in the private placement
by the Company of Company Common Stock.
PRELIMINARY STATEMENTS
A. The Company has entered into Subscription Agreements with the
Investors dated on or about September 20th, 2005 (collectively, the
"Subscription Agreements"), pursuant to which the Investors purchased an
aggregate 12,111,111 shares of Company Common Stock (the "Registrable
Securities").
B. Pursuant to the terms of the Subscription Agreements, the Company
has agreed to provide the Investors with certain registration rights with
respect to the shares of Company Common Stock purchased pursuant to the
Subscription Agreements.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE 1
REGISTRATION RIGHTS AND PROCEDURES
1.1 Filing of Registration Statement.
(a) Subject to the terms and conditions of this Agreement, the Company
shall prepare a Registration Statement on Form S-2, or other applicable form if
Form S-2 is not available or has been rescinded or replaced (the "Registration
Statement"), with respect to the Registrable Securities and shall file the
Registration Statement with the Securities and Exchange Commission (the "SEC")
within 60 days following the Subscription Date (as defined in the Subscription
Agreements).
(b) Notwithstanding anything contained herein to the contrary, if the
Company has an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering the Registrable Securities and
becomes eligible to use Form S-3 or such other short-form registration statement
form under the Securities Act, the Company may, upon 20 days prior notice to all
holders of Registrable Securities included in the "Selling Stockholders" section
of such registration statement, register any Registrable Securities registered
but not yet distributed under such effective registration statement on a
short-form registration statement under the Securities Act and, once such
short-form registration statement is declared effective, de-register such shares
under the previous registration statement, transfer the filing fees from the
previous registration statement (such transfer pursuant to Rule 429 under the
Securities Act, if applicable), or file a post-effective amendment converting
the previous registration statement to a short-form registration statement.
1.2 Effectiveness of Registration Statement. The Company shall use
commercially reasonable efforts to (a) have the Registration Statement declared
effective by the SEC within 120 days following the Subscription Date (as defined
in the Subscription Agreements); (b) subject to Section 1.4, prepare and file
with the SEC such amendments and supplements to the Registration Statement and
the prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective
with respect to any Registrable Securities, until the earlier of (i) the date on
which such Registrable Securities covered by the Registration Statement have
been sold by the Investors, (ii) the date on which either such Registrable
Securities are distributed to the public pursuant to Rule 144 promulgated by the
SEC pursuant to the Securities Act (or any similar provision then in effect) or
are saleable pursuant to Rule 144(k) promulgated by the SEC pursuant to the
Securities Act, (iii) the second anniversary of the Subscription Date, as such
term is defined in the Subscription Agreements (provided, however, that such
two-year period will be extended for a period of time equal to the period any
Investor is required to suspend sales of such Registrable Securities pursuant to
the terms of this Agreement), or (iv) the date on which such Registrable
Securities are sold to the Company (but not before the expiration of the
applicable prospectus delivery requirements); and (c) comply with the provisions
of the Securities Act with respect to the disposition of all securities covered
by the Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in the Registration
Statement. The Company shall further use commercially reasonable efforts to
register and qualify the Registrable Securities covered by such Registration
Statement under such other securities or "blue sky" laws of such jurisdictions
as shall be reasonably requested by a seller, provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business, where not otherwise required, or to file a general consent to
service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act.
1.3 Information and Copies.
(a) The Company shall furnish to each seller of Registrable Securities
such number of copies of the Registration Statement, each amendment and
supplement thereto, the prospectus included in the Registration Statement
(including each preliminary prospectus), and such other documents as such seller
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller.
(b) The Company shall promptly notify each seller of Registrable
Securities of the happening of any event as a result of which the prospectus
included in the Registration Statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing and shall use commercially reasonable efforts to
prepare and file with the SEC, and promptly notify each holder of Registrable
Securities of the filing of, a supplement to such prospectus or an amendment to
the Registration Statement so that, as thereafter delivered to the purchasers of
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made and in the case of an amendment to the
Registration Statement, use reasonable best efforts to cause it to become
effective as soon as possible. Upon receipt of any notice from the Company of
the happening of any event of the kind described above, each seller of
Registrable Securities will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such seller's receipt of
the copies of the supplemented or amended prospectus, or until it is advised in
writing by the Company that the use of the prospectus may be resumed.
(c) The Company shall make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to the Registration Statement, and any attorney, accountant, or other
agent retained by any such seller or underwriter, all financial and other
records of the Company (reasonably requested), the Company's applicable
corporate documents and contracts as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers, directors, employees, and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant, or agent in connection with the
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Registration Statement; provided, however, that each seller of Registrable
Securities agrees that information obtained by it as a result of such
inspections which is deemed confidential shall not be used by it as the basis
for any market transaction in the Company's securities unless and until such
information is made generally available to the public and each such seller shall
cause any attorney, accountant, or agent retained by such seller or underwriter
to keep confidential any such information.
(d) In the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Company Common Stock included in the Registration Statement for sale in any
jurisdiction, the Company will promptly notify each seller of such and will use
reasonable efforts to obtain the withdrawal of such order.
(e) The Company reserves the right to postpone for a reasonable period
of time, not to exceed in the aggregate 90 days from the date notification of
such delay is sent to the holders of Registrable Securities during any 365 day
period, the filing or the effectiveness of the Registration Statement if the
Company's Board of Directors in good faith determines that (i) such registration
might have a material adverse effect on any of the Company's plans or proposals
with respect to any financing, acquisition, recapitalization, reorganization, or
other material transaction, or (ii) the Company is in possession of material
non-public information that, if publicly disclosed, could result in a material
disruption of a major corporate development or transaction then pending or in
progress or in other material adverse consequences to the Company.
1.4 Listing of Company Common Stock. The Company will use reasonable
efforts to list or include the Company Common Stock on The American Stock
Exchange within 180 days following the Subscription Date (as defined in the
Subscription Agreements). The Company shall not be required to apply for the
Company's Common Stock to be listed or included on any other exchange at any
time.
1.5 Underwritten Offering.
(a) If the offering is to be underwritten, the Company shall enter into
any necessary agreements in connection therewith (including an underwriting
agreement containing customary representations, warranties, and agreements).
(b) To the extent either the Company or a majority of the holders of
the Registrable Securities ("Initiating Party") intends to distribute the
Registrable Securities covered by the Registration Statement by means of a firm
commitment underwritten public offering under the Securities Act, the ultimate
decision of whether to obtain an underwriter and the identity of the underwriter
will be made by the Company. In such event, the right of any holder to include
its Registrable Securities in such registration shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Registrable Securities that are Initiating Parties
and such holder) to the extent provided herein. All holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Agreement, if the underwriter advises an Initiating Party in writing that
marketing factors require a limitation on the number of shares to be
underwritten, then the Initiating Party shall so advise all holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all holders thereof, including the
Initiating Party, in proportion (as nearly as practicable) to the amount of
Registrable Securities owned by each holder and to be included in the
underwriting; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities, if any, including without
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limitation securities proposed to be registered and issued by the Company are
first entirely excluded from the underwriting.
1.6 Market Stand Off Agreement. By electing to include Registrable
Securities in any registration pursuant to Section 1.1, the holder of
Registrable Securities making such election shall be deemed to have agreed not
to effect any public sale or distribution of securities of the Company of the
same or similar class or classes of the securities included in the Registration
Statement or any securities convertible into or exchangeable or exercisable for
such securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, following the filing of a registration statement by the Company
with the SEC in connection with a public offering of its securities and
continuing until 90 days following the date such registration statement is
declared effective by the SEC.
1.7 Nature of Sale. Notwithstanding any other provision of this
Agreement, Company Common Stock shall be treated as Registrable Securities only
if and so long as it has not been (a) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (b)
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions, and restrictive legends with respect thereto, if any, are
removed upon the consummation of such sale.
ARTICLE 2
RIGHTS AND UNDERTAKINGS OF
HOLDERS OF REGISTRABLE SECURITIES
2.1 Rights of Holders. Each holder of Registrable Securities shall have
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any of the Company's securities as a result of exercising or
refraining from exercising any such right or rights.
2.2 Suspension of Sales; Notice of Sales. If any Registrable Securities
are included in a Registration Statement pursuant to the terms of this
Agreement, the holder thereof will not (until further notice) effect sales
thereof after receipt of written notice from the Company of the occurrence of an
event specified in order to permit the Company to correct or update the
Registration Statement or prospectus. Each holder of Registrable Securities
shall notify the Company of the sale of any Registrable Securities within a
reasonable period of time prior to such sale.
2.3 Compliance. If any Registrable Securities are being registered in
any registration pursuant to this Agreement, the holder thereof will comply with
all anti-stabilization, manipulation, and similar provisions of Section 10 of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), and any rules
promulgated thereunder by the SEC and, at the Company's request, will execute
and deliver to the Company and to any underwriter participating in such offering
an appropriate agreement to such effect.
2.4 Termination of Effectiveness. Following the end of the period
during which the Company is obligated to keep the Registration Statement current
and effective as described herein, each holder of Registrable Securities
included in the Registration Statement shall discontinue sales thereof pursuant
to such Registration Statement, unless such holder has received written notice
from the Company of its intention to continue the effectiveness of such
Registration Statement with respect to any of such securities which remain
unsold.
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2.5 Furnish Information. It shall be a condition precedent to the
Company's obligations to take any action pursuant to this Agreement with respect
to the Registrable Securities of any selling holder that such holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such holder's Registrable
Securities or as the Company shall otherwise reasonably request. The obligations
of the Company under this Agreement shall be suspended as to any holder of
Registrable Securities unless and until such holder complies with the preceding
sentence.
2.6 Underwritten Registration. No holder of Registrable Securities may
participate in any registration hereunder which is underwritten unless such
holder (a) agrees to sell such holder's securities on the basis provided in any
underwriting arrangements approved by the Company; (b) completes and executes
all customary questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; and (c) agrees to pay its pro rata share of all
underwriting discounts and commissions and its own expenses (including, without
limitation, counsel fees).
2.7 Delay of Registration. No holder of Registrable Securities shall
have any right to obtain or seek an injunction restraining or otherwise delaying
the preparation of, or declaration of the effectiveness of, any Registration
Statement initiated in accordance with the terms of this Agreement if such
injunction is the result of any controversy that might arise with respect to the
interpretation or implementation of these provisions.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification by the Company. The Company shall indemnify and
hold harmless, with respect to any Registration Statement filed by it pursuant
to this Agreement, to the fullest extent permitted by law, each holder of
Registrable Securities covered by such Registration Statement, as well as such
holder's officers, directors, employees, agents, and general or limited partners
(and the directors, officers, employees, and agents thereof) and each other
person, if any, who controls such holder within the meaning of the Securities
Act (collectively, the "Holder Indemnified Parties") against all losses, claims,
damages, liabilities, and expenses joint or several (including reasonable fees
of counsel and any amounts paid in settlement effected with the Company's
consent, which consent shall not be unreasonably withheld) (collectively,
"Losses") to which any such Holder Indemnified Party may become subject under
the Securities Act, the Exchange Act, any other federal law, any state or common
law, any rule or regulation promulgated thereunder, or otherwise, insofar as
such Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) are caused by (a) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement in which
such Registrable Securities were included as contemplated hereby or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (b) any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary, final, or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the SEC any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (c)
any violation by the Company of the Securities Act, the Exchange Act, any state
securities law, or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities laws in connection with any such
registration; provided, however, that the Company shall not be liable to any
such Holder Indemnified Party in any such case to the extent that any such Loss
(or action or proceeding, whether commenced or threatened, in respect thereof)
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such
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Registration Statement or amendment thereof or supplement thereto or in any such
preliminary, final, or summary prospectus in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder Indemnified Party relating to such Holder Indemnified Party for use in
the preparation thereof; and provided further, that the Company shall not be
liable to any such Holder Indemnified Party with respect to any preliminary
prospectus to the extent that any such Loss of such Holder Indemnified Party
results from the fact that such Holder Indemnified Party sold Registrable
Securities to a person to whom there was not timely sent or given a copy of the
prospectus (excluding documents incorporated by reference) or of the prospectus
as then amended or supplemented (excluding documents incorporated by reference)
if the Company previously furnished copies thereof to such Holder Indemnified
Party in compliance with this Agreement and the Loss of such Holder Indemnified
Party results from an untrue statement or omission of a material fact contained
in such preliminary prospectus which was corrected in the prospectus (or the
prospectus as amended or supplemented). Such indemnity and reimbursement of
expenses and obligations shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holder Indemnified Parties and shall
survive the transfer of such securities by such Holder Indemnified Parties.
3.2 Indemnification by Holders. Each holder of Registrable Securities
participating in any registration hereunder shall indemnify and hold harmless,
to the fullest extent permitted by law, the Company, its directors, officers,
employees, and agents, and each person who controls the Company (within the
meaning of the Securities Act) (collectively, "Company Indemnified Parties")
against all Losses to which any Company Indemnified Party may become subject
under the Securities Act, the Exchange Act, any other federal law, any state or
common law, or otherwise, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) are caused by (a) any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement in which such holder's Registrable Securities were
included or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (b) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary, final, or summary prospectus, together with
the documents incorporated by reference therein (as amended or supplemented if
the Company shall have filed with the SEC any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and in the cases described in clauses (a) and (b) of this Section
3.2, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information furnished in writing by such holder
relating to such holder for use in the preparation of the documents described in
such clauses (a) and (b), (c) any violation by such holder of the Securities
Act, the Exchange Act, any state securities law, or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
laws, and (d) with respect to any preliminary prospectus, the fact that such
holder sold Registrable Securities to a person to whom there was not timely sent
or given a copy of the prospectus (excluding the documents incorporated by
reference) or of the prospectus as then amended or supplemented (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such holder in compliance with this Agreement and the Loss of
such Company Indemnified Party results from an untrue statement or omission of a
material fact relating to information provided by such holder contained in such
preliminary prospectus which was corrected in the prospectus (or the prospectus
as amended or supplemented). Such indemnity obligation shall remain in full
force and effect regardless of any investigation made by or on behalf of Company
Indemnified Parties and shall survive the transfer of such securities by such
holder.
3.3 Conduct of Indemnification Proceedings. Promptly after receipt by
an identified party hereunder of written notice of the commencement of any
action, suit, proceeding, investigation, or threat thereof with respect to which
a claim for indemnification may be made pursuant hereto, such indemnified party
shall, if a claim in respect thereto is to be made against an indemnifying
party, give written notice to
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the indemnifying party of the threat or commencement thereof; provided, however,
that the failure to so notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice. If any such claim or action referred to hereunder is brought against any
indemnified party and it then notifies the indemnifying party of the threat or
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party (which counsel shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party). The
indemnifying party shall not be liable to an indemnified party hereunder for any
legal expenses of counsel or any other expenses incurred by such indemnified
party in connection with the defense thereof, unless the indemnifying party has
failed to assume the defense of such claim or action or to employ counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party shall have the right to retain its own counsel,
with the fees and expenses to be paid by the indemnified party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such action. The indemnifying party shall not be required to
indemnify the indemnified party with respect to any amounts paid in settlement
of any action, proceeding, or investigation entered into without the written
consent of the indemnifying party, which consent shall not be unreasonably
withheld. No indemnifying party shall consent to the entry of any judgment or
enter into any settlement without the consent of the indemnified party unless
(a) such judgment or settlement does not impose any obligation or liability upon
the indemnified party other than the execution, delivery, or approval thereof,
and (b) such judgment or settlement includes as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a full
release and discharge from all liability in respect of such claim and a full
release of all persons that may be entitled to or obligated to provide
indemnification or contribution under this Article.
3.4 Contribution. If the indemnification provided for herein is
unavailable to or insufficient to hold harmless an indemnified party hereunder,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the Losses (or actions or proceedings in
respect thereof) referred to herein in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and the
indemnified party on the other in connection with the statements, omissions,
actions, or inactions which resulted in such Losses. The relative fault of the
indemnifying party and the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or the indemnified
party, any action or inaction by any such party, and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement, omission, action, or inaction. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action, suit, proceeding,
investigation, or threat thereof with respect to which a claim for contribution
may be made against an indemnifying party hereunder, such indemnified party
shall, if a claim for contribution in respect thereto is to be made against an
indemnifying party, give written notice to the indemnifying party of the
commencement thereof (if the notice specified herein has not been given with
respect to such action); provided, however, that the failure to so notify the
indemnifying party shall not relieve it from any obligation to provide
contribution which it may have to any indemnified party hereunder, except to the
extent that the indemnifying party is actually prejudiced by the failure to give
notice. The parties hereto agree that it would not be just and equitable if
contribution pursuant hereto were determined by pro rata allocation or by any
other method of allocation which does not take account of equitable
considerations referred to herein.
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If indemnification is available hereunder, the indemnifying parties
shall indemnify each indemnified party to the fullest extent provided herein,
without regard to the relative fault of said indemnifying party or indemnified
party or any other equitable consideration provided for herein. The provisions
hereof shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract,
shall remain in full force and effect regardless of any investigation made by or
on behalf of any indemnified party, and shall survive the transfer of securities
by any such party.
ARTICLE 4
MISCELLANEOUS
4.1 Termination. The obligations under Article 1 shall terminate on the
date on which is the earlier of (a) the date on which the Company's obligations
under Section 1.2 terminate or (b) the date on which all Registrable Securities
covered by the Registration Statement have been sold.
4.2 Assignment; Successors and Assigns. This Agreement and all
provisions thereof shall be binding upon, inure to the benefit of, and are
enforceable by the parties hereto and their respective successors and permitted
assigns. Each Investor shall be deemed a third-party beneficiary of this
Agreement. An Investor may assign its rights hereunder to any permitted
transferee of all or any portion of the Registrable Securities provided that (a)
the Company is furnished with written notice of the name and address of the
assignee and the securities with respect to which such rights are being
assigned, and (b) the Company shall have the right to require any holder of
Registrable Securities to execute a counterpart of this Agreement as a condition
to such holder's claim to any rights hereunder.
4.3 Notices. All notices, requests, and other communications hereunder
shall be in writing and will be deemed to have been duly given and received (a)
when personally delivered, (b) when sent by facsimile upon confirmation of
receipt, (c) one business day after the day on which the same has been delivered
prepaid to a nationally recognized courier service, or (d) five business days
after the deposit in the United States mail, registered or certified, return
receipt requested, postage prepaid, in each case addressed as follows:
(a) if to the Company, then at 000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx
000, Xxxxxxx, Xxxxx 00000, Attn: Chief Executive Officer, facsimile number,
(000) 000-0000, with a copy to Xxxx Xxxxxxxx, Esq., Xxxxx & XxXxxxxx LLP, 2300
Xxxxxxxx Xxxx Center, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, facsimile number,
(000) 000-0000; or
(b) if addressed to an Investor, then at the address and facsimile
number for such Investor set forth in the Subscription Agreement of such
Investor and otherwise contained in the Company's books and records.
An Investor or the Company may agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures reasonably approved by it; provided that approval of such procedures
may be limited to particular notices or communications. Any party hereto from
time to time may change its address, facsimile number, or other information for
the purpose of notices to that party by giving notice specifying such change to
the other party hereto.
4.4 Public Announcements. Except as otherwise required by law, an
Investor shall not issue any press release or make any other public announcement
with respect to the transactions contemplated hereby without the approval of the
Company, which approval shall not be unreasonably withheld or delayed.
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4.5 Governing Law; Jurisdiction.
(a) This Agreement, and the provisions, rights, obligations, and
conditions set forth herein, and the legal relations between the parties hereto,
including all disputes and claims, whether arising in contract, tort, or under
statute, shall be governed by and construed in accordance with the laws of the
State of Texas without giving effect to its conflict of law provisions.
(b) Any and all disputes arising out of, or in connection with, the
interpretation, performance, or nonperformance of this Agreement or any and all
disputes arising out of, or in connection with, transactions in any way related
to this Agreement and/or the relationship between the parties shall be litigated
solely and exclusively before the United States District Court for the Southern
District of Texas, Houston Division. The parties consent to the in personam
jurisdiction of said court for the purposes of any such litigation, and waive,
fully and completely, any right to dismiss and/or transfer any action pursuant
to 28 U.S.C. Section 1404 or 1406 (or any successor statute). In the event the
United States District Court for the Southern District of Texas, Houston
Division does not have subject matter jurisdiction of said matter, then such
matter shall be litigated solely and exclusively before the appropriate state
court of competent jurisdiction located in Xxxxxx County, State of Texas.
4.6 Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Investors and the other
parties hereto and their respective successors and permitted assigns.
4.7 Severability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid, or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid, or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
4.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction, or effect.
4.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original instrument and all
of which together shall constitute one and the same instrument.
4.10 Entire Agreement. This Agreement embodies the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
4.11 Amendment; Waiver. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company and Investors beneficially
owning not less than fifty percent (50%) of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to or departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of an Investor and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Investors may be given by such
Investor; provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
9
4.12 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
[Signature page follows]
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by the undersigned, thereto duly authorized, as of the date first set forth
above.
FAR EAST ENERGY CORPORATION
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Chief Financial Officer
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XXXXXX XXXXXX & COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Managing Director
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