REGISTRATION RIGHTS AGREEMENT
Exhibit 10.3
This
REGISTRATION RIGHTS
AGREEMENT, dated as of October 26, 2016 (this
“Agreement”), is by and
among Yuma Energy, Inc., a Delaware corporation (the
“Company”), and each of
the parties executing a counterpart signature page on or after the
date hereof (the “Holders”).
RECITALS
WHEREAS, on February 10, 2016, the
Company entered into an Agreement and Plan of Merger and
Reorganization by and among Xxxxx Petroleum Acquisition Corp., a
Delaware corporation, Yuma Energy, Inc., a California corporation,
the Company and Yuma Merger Subsidiary, Inc., a Delaware
corporation (the “Merger
Agreement”);
WHEREAS, under the Merger Agreement,
certain Holders will receive shares of common stock, par value
$0.001 per share (the “Common Stock”), of the
Company and certain Holders will receive shares of Series D
Preferred Stock of the Company, par value $0.001 per share
(“Preferred
Stock”), which is convertible into shares of Common
Stock under terms and conditions set forth in the Company’s
certificate of designation with respect to the Series D Preferred
Stock; and
WHEREAS, resales by the Holders of the
Common Stock (including Common Stock issued upon conversion of the
Preferred Stock) may be required to be registered under the
Securities Act and applicable state securities laws, depending upon
the status of a Holder or the intended method of distribution of
the Common Stock; and
WHEREAS, the Company has agreed to
provide such Holders who execute this Agreement with the
registration rights specified in this Agreement with respect to any
shares of Common Stock held by them as well as shares of Common
Stock to be issued upon conversion of Preferred Stock held by them,
on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the
premises, mutual covenants and agreements hereinafter contained and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I - DEFINITIONS
1.1
Definitions.
(a) For
purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1.1; provided, however, that capitalized terms
used but not defined herein shall have the meaning ascribed to such
terms in the Merger Agreement.
“Affiliate” means, with
respect to any Person, any Person who, directly or indirectly
through one or more intermediaries, controls, is controlled by or
is under common control with any Person.
“Automatic Shelf Registration
Statement” means an “Automatic Shelf
Registration Statement,” as defined in Rule 405 under the
Securities Act.
“Beneficial Ownership” and
terms of similar import shall be as defined under and determined
pursuant to Rule 13d-3 promulgated under the Exchange
Act.
“Business Day” means any
day other than (a) a Saturday, Sunday or a federal holiday, or (b)
a day on which commercial banks in New York City, New York are
authorized or required to be closed.
“Closing” means the
Closing as defined in the Merger Agreement.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations promulgated by the SEC
thereunder.
“Excluded Registration”
means a registration under the Securities Act of (i) securities
pursuant to one or more Demand Requests pursuant to Section 2.1 hereof, (ii)
securities registered on Form S-8 or any similar successor form and
(iii) securities registered to effect the acquisition of or
combination with another Person.
“Holder” means (i) a
securityholder listed on the signature page hereof and (ii) any
direct or indirect transferee of any such securityholder, including
any securityholder that receives shares of Common Stock upon a
distribution or liquidation of a Holder, who has been assigned the
rights of the transferor Holder under this Agreement in accordance
with Section
2.8.
“Participating Majority”
shall mean, with respect to any particular Underwritten Shelf
Takedown, the Holder(s) of a majority of the Registrable Securities
requested to be included in such Underwritten Shelf Takedown;
provided,
however, that in
the event that, with respect to any particular Underwritten Shelf
Takedown, if any of RMCP PIV DPC,
LP (“Red
Mountain”), Xxxxx
Petroleum Investment, LLC (“Evercore”)
or Sankaty Xxxxx, LLC
(“Sankaty”) proposes to
sell in such offering 30% or more of the Registrable Securities
acquired by it at the Closing, or Xxx Xxxxx proposes to sell in
such offering 30% or more of his Registrable Securities then it
shall constitute the “Participating Majority” for
purposes of such Underwritten Shelf Takedown; provided, further, however, that if each of Red
Mountain, Evercore and Sankaty, Xxx Xxxxx or any two of them
propose to sell in such offering 30% or more of the Registrable
Securities held by it, then those Holders shall jointly constitute
the Participating Majority, provided, that if they shall fail to
agree on any matter in such capacity, the one of them that proposes
to sell the largest number of Registrable Securities in such
offering shall be the “Participating Majority” for
purposes of such Underwritten Shelf Takedown.
“Person” or
“person” means any
individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or
political subdivision thereof.
“Prospectus” means the
prospectus (including any preliminary, final or summary prospectus)
included in any Registration Statement, all amendments and
supplements to such prospectus and all other material incorporated
by reference in such prospectus.
“register,”
“registered” and
“registration” refer to a
registration effected by preparing and filing a Registration
Statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such Registration
Statement.
“Registrable Securities”
means, at any time, the Common Stock owned by the Holders, whether
owned on the date hereof or acquired hereafter, including any
shares of Common Stock which may be issued or distributed in
respect of such shares of Common Stock or shares of Preferred Stock
by way of conversion, concession, stock dividend or stock split or
other distribution, recapitalization or reclassification or similar
transaction; provided, however, that Registrable
Securities shall not include any shares (i) the sale of which has
been registered pursuant to the Securities Act and which shares
have been sold pursuant to such registration (other than, for the
avoidance of doubt, the sale of shares to the Holders as a result
of the consummation of the transactions contemplated by the Merger
Agreement) or (ii) which have been sold pursuant to Rule
144.
“Registration Expenses”
means all expenses (other than underwriting discounts and
commissions) arising from or incident to the Company’s
performance of or compliance with this Agreement, including,
without limitation: (i) SEC, stock exchange, FINRA and other
registration and filing fees; (ii) all fees and expenses incurred
in connection with complying with any securities or blue sky laws
(including, without limitation, fees, charges and disbursements of
counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) all printing, messenger and delivery
expenses; (iv) the fees, charges and disbursements of counsel to
the Company and of its independent public accountants and any other
accounting and legal fees, charges and expenses incurred by the
Company (including, without limitation, any expenses arising from
any special audits or “comfort” letters required in
connection with or incident to any registration); (v) the fees and
expenses incurred in connection with the listing of the Registrable
Securities on the NYSE MKT, NYSE or NASDAQ (or any other national
securities exchange) or the quotation of Registrable Securities on
any inter-dealer quotation system; (vi) the fees and expenses
incurred by the Company in connection with any road show for
underwritten offerings; and (vii) reasonable fees, charges and
disbursements of counsel to the Holders, including, for the
avoidance of doubt, any expenses of counsel to the Holders in
connection with the filing or amendment of any Registration
Statement or Prospectus hereunder; provided that Registration
Expenses shall only include the fees and expenses of one counsel to
the Holders (and one local counsel per jurisdiction) with respect
to any offering.
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“Registration Statement”
means any registration statement of the Company (including a
Shelf-Registration Statement) that covers the resale of any
Registrable Securities pursuant to the provisions of this Agreement
filed with, or to be filed with, the SEC under the rules and
regulations promulgated under the Securities Act, including the
related Prospectus, amendments and supplements to such registration
statement, including pre- and post-effective amendments, and all
exhibits, financial information and all other material incorporated
by reference in such registration statement.
“Required Holders” means
the consent or approval of Holders who then own beneficially more
than 66-2/3% of the aggregate number of shares of Common Stock
subject to this Agreement together with each of Red Mountain,
Evercore and Sankaty; provided that at any time that
any of Red Mountain, Evercore or Sankaty ceases to hold at least
30% of the Registrable Securities acquired as a result of the
transactions contemplated in the Merger Agreement (adjusted
appropriately for stock splits, stock dividends, combinations,
recapitalizations, consolidations, mergers, reclassifications and
the like with respect to the Registrable Securities), the consent
or approval of such Holder shall not be required.
“Rule 144” means Rule 144
promulgated by the SEC pursuant to the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such rule.
“SEC” means the Securities
and Exchange Commission or any other Federal agency at the time
administering the Securities Act.
“Securities Act” means the
Securities Act of 1933, as amended, or any similar Federal statute,
and the rules and regulations promulgated by the SEC
thereunder.
“Selling Expenses” means
the underwriting fees, discounts, selling commissions and stock
transfer taxes applicable to all Registrable Securities registered
by the Holders and legal expenses not included within the
definition of Registration Expenses.
“Shelf Registration
Statement” means a “shelf” registration
statement of the Company that covers all the Registrable Securities
(and may cover other securities of the Company) on Form S-3 and
under Rule 415 under the Securities Act or, if the Company is not
then eligible to file on Form S-3, on Form S-1 under the Securities
Act, or any successor rule that may be adopted by the SEC,
including without limitation any such registration statement filed
pursuant to Section
2.1, and all amendments and supplements to such
“shelf” registration statement, including
post-effective amendments, in each case, including the Prospectus
contained therein, all exhibits thereto and any document
incorporated by reference therein.
(b) For
purposes of this Agreement, the following terms have the meanings
set forth in the sections indicated:
|
Term
|
|
Section
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Advice
|
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2.5
|
|
Agreement
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Introductory
Paragraph
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Common
Stock
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Recitals
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Company
|
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Introductory
Paragraph
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Company
Notice
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2.1(c)
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Company
Underwritten Offering
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2.3
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Demand
Request
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2.1(c)
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First
Reserve
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2.1(d)
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Lock-Up
Period
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2.3
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Material Adverse
Effect
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2.2(b)
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Merger
Agreement
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Recitals
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Participating
Majority
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2.1(d)
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Records
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2.4(l)
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Requesting
Holder
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2.1(c)
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Seller
Affiliates
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2.7
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Suspension
Period
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2.1(f)
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Suspension
Notice
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2.5
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Underwritten Shelf
Takedown
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2.1(b)
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1.2
Other
Definitional and Interpretive Matters. Unless otherwise
expressly provided or the context otherwise requires, for purposes
of this Agreement the following rules of interpretation
apply.
(a)
When calculating the period of time before which, within which or
following which any act is to be done or step taken pursuant to
this Agreement, the date that is the reference date in calculating
such period is excluded. If the last day of such period is a
non-Business Day, the period in question ends on the next
succeeding Business Day.
(b) Any
reference in this Agreement to $ means U.S. dollars.
(c) Any
reference in this Agreement to gender includes all genders, and
words imparting the singular number also include the plural and
vice versa.
(d) The
division of this Agreement into Articles, Sections and other
subdivisions and the insertion of headings are for convenience of
reference only and do not affect, and should not be utilized in,
the construction or interpretation of this Agreement.
(e) All
references in this Agreement to any “Article” or
“Section” are to the corresponding Article or Section
of this Agreement.
(f) The
words “herein,”
“hereinafter,”
“hereof,” and
“hereunder” refer to this
Agreement as a whole and not merely to a subdivision in which such
words appear unless the context otherwise requires.
(g) The
word “including” or any
variation thereof means “including, but not limited to,” and
does not limit any general statement that it follows to the
specific or similar items or matters immediately following
it.
ARTICLE
II - REGISTRATION RIGHTS
2.1
Shelf
Registration.
(a) On
or prior to the 180th day following the Closing, the Company will
prepare and file one Shelf Registration Statement (which Shelf
Registration Statement shall be an Automatic Shelf Registration
Statement if the Company is then eligible to file an Automatic
Shelf Registration Statement) registering for resale the
Registrable Securities under the Securities Act. The plan of
distribution indicated in the Shelf Registration Statement will
include all such methods of sale as any Holder may reasonably
request in writing prior to the filing of the Shelf Registration
Statement and that can be included in the Shelf Registration
Statement under the rules and regulations of the SEC. The Company
shall use its commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the SEC as
promptly as practicable following such filing. Until such time as
all Registrable Securities cease to be Registrable Securities or
the Company is no longer eligible to maintain a Shelf Registration
Statement, the Company shall use its commercially reasonable
efforts to keep current and effective such Shelf Registration
Statement and file such supplements or amendments to such Shelf
Registration Statement (or file a new Shelf Registration Statement
(which Shelf Registration Statement shall be an Automatic Shelf
Registration Statement if the Company is then eligible to file an
Automatic Shelf Registration Statement) when such preceding Shelf
Registration Statement expires pursuant to the rules of the SEC) as
may be necessary or appropriate in order to keep such Shelf
Registration Statement continuously effective and useable for the
resale of all Registrable Securities under the Securities Act. Any
Shelf Registration Statement when declared effective (including the
documents incorporated therein by reference) will comply in all
material respects as to form with all applicable requirements of
the Securities Act and the Exchange Act and will not contain an
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 not misleading.
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(b) Any
one or more Holders of Registrable Securities may request to sell
all or any portion of their Registrable Securities in an
underwritten offering that is registered pursuant to the Shelf
Registration Statement (each, an “Underwritten Shelf
Takedown”); provided, however, that in the case of
each such Underwritten Shelf Takedown, such Holder or Holders will
be entitled to make such demand only if the proceeds from the sale
of Registrable Securities in the offering (before the deduction of
underwriting discounts) is reasonably expected to exceed, in the
aggregate, $5 million; provided, further that the Company shall
not be obligated to effect more than three Underwritten Shelf
Takedowns during any period of twelve consecutive months and shall
not be obligated to effect an Underwritten Shelf Takedown within
ninety days after the pricing of a previous Underwritten Shelf
Takedown. The Company shall not be deemed to have effected any
Underwritten Shelf Takedown if the Holders participating in such
offering are not able to sell at least 50% of the Registrable
Securities desired to be sold in such Underwritten Shelf
Takedown.
(c) All
requests (a “Demand
Request”) for Underwritten Shelf Takedowns shall be
made by the Holder or Holders making such request (the
“Requesting
Holder”) by giving written notice to the Company. Each
Demand Request shall specify the approximate number of Registrable
Securities to be sold in the Underwritten Shelf Takedown and the
expected price range (net of underwriting discounts and
commissions) of such Underwritten Shelf Takedown. Within three
Business Days after receipt of any Demand Request, the Company
shall send written notice of such requested Underwritten Shelf
Takedown to all other Holders of Registrable Securities (the
“Company
Notice”) and shall include in such Underwritten Shelf
Takedown all Registrable Securities with respect to which the
Company has received written requests for inclusion therein from
such other Holders within five Business Days after sending the
Company Notice.
(d) The
Company shall select one or more nationally prominent firms of
investment bankers reasonably acceptable to the Participating
Majority to act as the lead managing underwriter or underwriters in
connection with such Underwritten Shelf Takedown. All Holders
proposing to distribute their securities through such underwriting
shall enter into an underwriting agreement with such underwriter or
underwriters in accordance with Section 2.1(g). The Company
shall not, without the written consent of the Participating
Majority, include in such Underwritten Shelf Takedown any
securities other than those beneficially owned by the participating
Holders.
(e) If
the managing underwriters for such Underwritten Shelf Takedown
advise the Company and the participating Holders in writing that,
in their opinion, marketing factors require a limitation of the
amount of securities to be underwritten (including Registrable
Securities) because the amount of securities to be underwritten is
likely to have an adverse effect on the price, timing or the
distribution of the securities to be offered, then the Company
shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the amount of
Registrable Securities that may be included in the underwriting
shall be allocated among participating Holders, (i) first among the participating
Holders as nearly as possible on a pro rata basis based on the
total amount of Registrable Securities held by such Holders
requested to be included in such underwriting and (ii) second to the extent all
Registrable Securities requested to be included in such
underwriting by the participating Holders have been included, to
any securities to be included with the written consent of the
Participating Majority pursuant to the final sentence of the above
clause (d) allocated on such basis as the Company shall determine.
The Company shall prepare preliminary and final prospectus
supplements for use in connection with the Underwritten Shelf
Takedown, containing such additional information as may be
reasonably requested by the underwriter(s).
(f)
Upon written notice to the Holders of Registrable Securities, the
Company shall be entitled to suspend, for a reasonable period of
time (each, a “Suspension Period”), the
use of any Registration Statement or Prospectus and shall not be
required to amend or supplement the Registration Statement, any
related Prospectus or any document incorporated therein by
reference if the board of directors, chief executive officer or
chief financial officer of the Company determines in its or his or
her reasonable good faith judgment that the Registration Statement
or any Prospectus may contain an untrue statement of a material
fact or may omit any fact necessary to make the statements in the
Registration Statement or Prospectus not misleading; provided, that the Company
shall use its commercially reasonable efforts to amend the
Registration Statement or Prospectus to correct such untrue
statement or omission as promptly as reasonably practicable, unless
(but only for so long as) the Board of Directors determines in good
faith that such amendment would reasonably be expected to have a
materially detrimental effect on the Company. The Holders
acknowledge and agree that written notice of any Suspension Period
may constitute material non-public information regarding the
Company and shall keep the existence and contents of any such
written notice confidential.
5
(g) If
requested by the underwriters for an Underwritten Shelf Takedown,
the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to be form and
substance (including with respect to representations and warranties
by the Company) as is customarily given by the Company to
underwriters in an underwritten public offering, and to contain
indemnities to the effect and to the extent provided in
Section 2.7. The
Holders of Registrable Securities participating in the Underwritten
Shelf Takedown shall be parties to such underwriting agreement;
provided,
however, that no
such Holder shall be required to (i) make any representations or
warranties in connection with any such registration other than
representations and warranties as to (A) such Holder’s
ownership of his or its Registrable Securities to be sold or
transferred free and clear of all liens, claims and encumbrances,
(B) such Holder’s power and authority to effect such transfer
and (C) such customary matters pertaining to compliance with
securities laws as may be reasonably requested or (ii) undertake
any indemnification obligations to the Company or the underwriters
with respect thereto except as otherwise provided in Section 2.7. No Holder may
participate in the Underwritten Shelf Takedown unless such Holder
agrees to sell its Registrable Securities on the basis provided in
such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities (subject to clause
(ii) in the above proviso) and other documents reasonably required
under the terms of such underwriting agreement. Each participating
Holder may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters
also be made to and for such participating Holder’s benefit
and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement also be
conditions precedent to its obligations.
2.2
Piggyback
Registrations.
(a)
Each time the Company proposes to register any of its equity
securities (other than pursuant to an Excluded Registration) under
the Securities Act for sale to the public (whether for the account
of the Company or the account of any securityholder of the Company)
and the form of registration statement to be used permits the
registration of Registrable Securities, the Company shall give
prompt written notice to each Holder of Registrable Securities
(which notice shall be given not less than 10 Business Days prior
to the anticipated filing date), which notice shall offer each such
Holder the opportunity to include any or all of its or his
Registrable Securities in such registration statement, subject
to the limitations contained in Section 2.2(b) hereof. Each
Holder who desires to have its or his Registrable Securities
included in such registration statement shall so advise the Company
in writing (stating the number of shares desired to be registered)
within five Business Days after the date of such notice from the
Company. Any Holder shall have the right to withdraw such
Holder’s request for inclusion of such Holder’s
Registrable Securities in any registration statement pursuant to
this Section 2.2(a)
by giving written notice to the Company of such withdrawal. Subject
to Section 2.2(b)
below, the Company shall include in such registration statement all
such Registrable Securities so requested to be included therein;
provided,
however, that the
Company may at any time withdraw or cease proceeding with any such
registration if it shall at the same time withdraw or cease
proceeding with the registration of all other equity securities
originally proposed to be registered. For the avoidance of doubt,
any registration or offering pursuant to this Section 2.2 shall not be
considered an Underwritten Shelf Takedown for purposes of
Section 2.1 of this
Agreement.
(b)
With respect to any registration pursuant to Section 2.2(a), if the managing
underwriter advises the Company that the inclusion of Registrable
Securities requested to be included in the Registration Statement
will materially and adversely affect the price or success of the
offering (a “Material Adverse
Effect”), the Company will be obligated to include in
the Registration Statement (after all such shares for its own
account), (i) first
among the requesting Holders as nearly as possible on a pro rata
basis based on the total amount of Registrable Securities held by
such Holders requested to be included in such Registration
Statement and (ii) second to the extent all
Registrable Securities requested to be included in such
Registration Statement by the requesting Holders have been
included, to any securities requested to be included in such
Registration Statement by all Persons other than the Holders who
have requested (pursuant to other contractual registration rights)
that their shares be included in such Registration Statement,
allocated on such basis as the Company shall determine, but in no
event more than the maximum number of Registrable Securities that
the managing underwriter advises may be sold in the offering
covered by the Registration Statement without a Material Adverse
Effect. If, as a result of the provisions of this Section 2.2(b), any Holder
shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested to be so included, such
Holder may withdraw such Holder’s request to include
Registrable Securities in such Registration Statement. No Person
may participate in any Registration Statement pursuant to
Section 2.2(a)
unless such Person (i) agrees to sell such person’s
Registrable Securities on the basis provided in any underwriting
arrangements approved by the Company and (ii) completes and
executes all questionnaires, powers of attorney, customary
indemnities (subject to the immediately following proviso),
underwriting agreements and other documents, each in customary
form, reasonably required under the terms of such underwriting
arrangements; provided, however, that no such Person
shall be required to (A) make any representations or warranties in
connection with any such registration other than representations
and warranties as to (1) such Person’s ownership of his or
its Registrable Securities to be sold or transferred free and clear
of all liens, claims and encumbrances, (2) such Person’s
power and authority to effect such transfer and (3) such matters
pertaining to compliance with securities laws as may be reasonably
requested or (B) undertake any indemnification obligations to the
Company or the underwriters with respect thereto except as
otherwise provided in Section 2.7.
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2.3
Holdback
Agreement. In
connection with any Underwritten Shelf Takedown or other registered
underwritten offering of equity securities by the Company (a
“Company
Underwritten Offering”) commencing after the date of
execution of the Merger Agreement (other than any registration on
Form X-0, X-0 or any successor forms thereto), each Holder agrees,
with respect to the Registrable Securities owned by such Holder, to
be bound by any and all restrictions on the sale, disposition,
distribution, hedging or other transfer of any interest in
Registrable Securities (except with respect to such Registrable
Securities as are proposed to be offered pursuant to the
Underwritten Shelf Takedown or other registered underwritten
offering), or any securities convertible into or exchangeable or
exercisable for such securities, as are imposed on the Company,
without prior written consent from the managing underwriter of such
Company Underwritten Offering, for the period commencing on and
ending 90 days following the date of pricing of such Company
Underwritten Offering (subject to extension in connection with any
earnings release or other release of material information pursuant
to FINRA Rule 2711(f) to the extent applicable) (the
“Lock-Up
Period”). If requested by the managing underwriter,
each Holder agrees to execute a lock-up agreement in favor of the
Company’s underwriters to such effect that the
Company’s underwriters in any relevant Company Underwritten
Offering shall be third party beneficiaries of this Section 2.3. The provisions of
this Section 2.3
will no longer apply to a Holder once such Holder ceases to hold at
least 1% of the Registrable Securities acquired as a result of the
transactions contemplated in the Merger Agreement (adjusted
appropriately for stock splits, stock dividends, combinations,
recapitalizations, consolidations, mergers, reclassifications and
the like with respect to the Registrable Securities).
Notwithstanding anything to the contrary set forth in this
Section 2.3, (i)
each Holder may sell or transfer any Registrable Securities to any
Affiliate of such Holder, so long as such Affiliate agrees to be
and remains bound hereby, (ii) each Holder may enter into a bona
fide pledge of any Registrable Securities (and any foreclosure on
any such pledge shall also be permitted), and (iii) any hedging
transaction with respect to an index or basket of securities where
the equity securities of the Company constitute a de minimis amount
shall not be prohibited pursuant to this Section 2.3.
2.4
Registration
Procedures. In connection with the registration and sale of
Registrable Securities pursuant to this Agreement, the Company will
use its commercially reasonable efforts to effect the registration
and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the
Company will:
(a) if
the Registration Statement is not automatically effective upon
filing, use commercially reasonable efforts to cause such
Registration Statement to become effective as promptly as
reasonably practicable;
(b)
promptly notify each selling Holder, promptly after the Company
receives notice thereof, of the time when such Registration
Statement has been declared effective or a supplement to any
prospectus forming a part of such Registration Statement has been
filed;
(c)
after the Registration Statement becomes effective, promptly notify
each selling Holder of any request by the SEC that the Company
amend or supplement such Registration Statement or
Prospectus;
(d)
prepare and file with the SEC such amendments and supplements to
the Registration Statement and the Prospectus used in connection
therewith as may be reasonably necessary to keep the Registration
Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Stock covered by the Registration Statement for the period required
to effect the distribution of the Registrable Securities as set
forth in Section 2 hereof;
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(e)
furnish to the selling Holders such numbers of copies of such
Registration Statement, each amendment and supplement thereto, each
Prospectus (including each preliminary Prospectus and Prospectus
supplement) and such other documents as the Holder and any
underwriter(s) may reasonably request in order to facilitate the
disposition of the Registrable Securities;
(f) use
its commercially reasonable efforts to register and qualify the
Registrable Securities under such other securities or blue-sky laws
of such jurisdictions as shall be reasonably requested by the
Holders and any underwriter(s) and do any and all other acts and
things that may be reasonably necessary or advisable to enable the
Holders and any underwriter(s) to consummate the disposition of the
Registrable Securities in such jurisdictions; provided, however, that the Company shall
not be required in connection therewith or as a condition thereto
to qualify to do business in or to file a general consent to
service of process in any jurisdiction, unless the Company is
already subject to service in such jurisdiction and except as may
be required by the Securities Act, or subject itself to taxation in
any such jurisdiction, unless the Company is already subject to
taxation in such jurisdiction;
(g) use
its commercially reasonable efforts to cause all such Registrable
Securities to be listed on a national securities exchange or
trading system and each securities exchange and trading system (if
any) on which similar equity securities issued by the Company are
then listed;
(h)
provide a transfer agent and registrar for the Registrable
Securities and provide a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of the
Registration Statement;
(i) use
its commercially reasonable efforts to furnish, on the date that
shares of Registrable Securities are delivered to the underwriters
for sale, if such securities are being sold through underwriters,
(i) an opinion, dated as of such date, of the counsel representing
the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters by the Company in
an underwritten public offering, addressed to the underwriters,
(ii) a letter dated as of such date, from the independent public
accountants of the Company, in form and substance as is customarily
given by independent public accountants to underwriters in an
underwritten public offering, addressed to the underwriters and
(iii) an engineers’ reserve report letter as of such date,
from the independent petroleum engineers of the Company, in form
and substance as is customarily given by independent petroleum
engineers to underwriters in an underwritten public offering,
addressed to the underwriters;
(j) if
requested by the Holders, cooperate with the Holders and the
managing underwriter (if any) to facilitate the timely preparation
and delivery of certificates (which shall not bear any restrictive
legends unless required under applicable law) representing
securities sold under the Registration Statement, and enable such
securities to be in such denominations and registered in such names
as such Holders or the managing underwriter (if any) may request
and keep available and make available to the Company’s
transfer agent prior to the effectiveness of such Registration
Statement a supply of such certificates;
(k) in
the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in form
and substance as is customarily given by the Company to
underwriters in an underwritten public offering, with the
underwriter(s) of such offering;
(l)
upon execution of confidentiality agreements in form and substance
reasonably satisfactory to the Company, promptly make available for
inspection by the selling Holders, any underwriter(s) participating
in any disposition pursuant to such Registration Statement, and any
attorney or accountant or other agent retained by any such
underwriter or selected by the selling Holders, all financial and
other records, pertinent corporate documents, and properties of the
Company (collectively, “Records”), and use
commercially reasonable efforts to 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 each case, as
necessary or advisable to verify the accuracy of the information in
such Registration Statement and to conduct appropriate due
diligence in connection therewith; provided, Records that the
Company determines, in good faith, to be confidential and that it
notifies the selling Holders are confidential shall not be
disclosed by the selling Holders unless the release of such Records
is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is otherwise required by applicable law.
Each Holder agrees that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used
by it or its affiliates (other than with respect to such
Holders’ due diligence) unless and until such information is
made generally available to the public, and further agrees that,
upon learning that disclosure of such Records is sought in a court
of competent jurisdiction, to the extent permitted and to the
extent practicable it shall give notice to the Company and allow
the Company to undertake appropriate action to prevent disclosure
of the Records deemed confidential;
8
(m)
promptly notify the selling Holders and any underwriter(s) of the
notification to the Company by the SEC of its initiation of any
proceeding with respect to the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement,
and in the event of the issuance of any stop order suspending the
effectiveness of such Registration Statement, or of any order
suspending or preventing the use of any related Prospectus or
suspending the qualification of any Registrable Securities included
in such Registration Statement for sale in any jurisdiction, use
its commercially reasonable efforts to obtain promptly the
withdrawal of such order;
(n)
promptly notify the selling Holders and any underwriter(s) at any
time when a Prospectus relating thereto is required to be delivered
under the Securities Act of the happening of any event as a result
of which the Prospectus included in the Registration Statement, as
then in effect, includes 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 under which they were made, and at the request of
any Holder promptly prepare and furnish to such Holder a reasonable
number of copies of a supplement to or an amendment of such
Prospectus, or a revised Prospectus, as may be necessary so that,
as thereafter delivered to the purchasers of such securities, such
Prospectus shall not include an 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 not misleading in light of
the circumstances under which they were made (following receipt of
any supplement or amendment to any Prospectus, the selling Holders
shall deliver such amended, supplemental or revised Prospectus in
connection with any offers or sales of Registrable Stock, and shall
not deliver or use any Prospectus not so supplemented, amended or
revised);
(o)
promptly notify the selling Holders and any underwriter(s) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of any Registrable Securities for
sale under the applicable securities or blue sky laws of any
jurisdiction;
(p)
make available to each Holder (i) promptly after the same is
prepared and publicly distributed, filed with the SEC, or received
by the Company, one copy of each Registration Statement and any
amendment thereto, each preliminary Prospectus and Prospectus and
each amendment or supplement thereto, each letter written by or on
behalf of the Company to the SEC or the staff of the SEC (or other
governmental agency or self-regulatory body or other body having
jurisdiction, including any domestic or foreign securities
exchange), and each item of correspondence from the SEC or the
staff of the SEC (or other governmental agency or self-regulatory
body or other body having jurisdiction, including any domestic or
foreign securities exchange), in each case relating to such
Registration Statement or to any of the documents incorporated by
reference therein, and (ii) such number of copies of each
Prospectus, including a preliminary Prospectus, and all amendments
and supplements thereto and such other documents as any Holder or
any underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities. The Company will
promptly notify the Holders of the effectiveness of each
Registration Statement or any post-effective amendment or the
filing of any supplement or amendment to such Registration
Statement or of any Prospectus supplement. The Company will
promptly respond to any and all comments received from the SEC,
with a view towards causing each Registration Statement or any
amendment thereto to be declared effective by the SEC as soon as
practicable and shall file an acceleration request, if necessary,
as soon as practicable following the resolution or clearance of all
SEC comments or, if applicable, following notification by the SEC
that any such Registration Statement or any amendment thereto will
not be subject to review;
(q)
take no direct or indirect action prohibited by Regulation M under
the Exchange Act; provided, that, to the extent
that any prohibition is applicable to the Company, the Company will
take all reasonable action to make any such prohibition
inapplicable;
(r)
provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration
Statement; and
9
(s)
take all such other actions as are reasonably necessary in order to
facilitate the disposition of such Registrable
Securities.
2.5
Suspension of
Dispositions. Each Holder agrees by acquisition of any
Registrable Securities that, upon receipt of any notice (a
“Suspension
Notice”) from the Company of the happening of any
event of the kind described in Section 2.4(n) such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus, or
until it is advised in writing (the “Advice”) by the Company
that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus. The Company shall
extend the period of time during which the Company is required to
maintain the Shelf Registration Statement effective pursuant to
this Agreement by the number of days during the period from and
including the date of the giving of such Suspension Notice to and
including the date such Holder either receives the supplemented or
amended Prospectus or receives the Advice. If so directed by the
Company, such Holder will deliver to the Company all copies, other
than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. The Company shall use its
commercially reasonable efforts and take such actions as are
reasonably necessary to render the Advice as promptly as
practicable. The Holders acknowledge and agree that receipt of a
Suspension Notice may constitute material non-public information
regarding the Company and shall keep the existence and contents of
any such Suspension Notice confidential.
2.6
Registration
Expenses. All Registration Expenses shall be borne by the
Company. In addition, for the avoidance of doubt, the Company shall
pay its internal expenses in connection with the performance of or
compliance with this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on
each securities exchange on which they are to be listed. All
Selling Expenses relating to Registrable Securities registered
shall be borne by the Holders of such Registrable Securities pro
rata on the basis of the number of Registrable Securities
sold.
2.7
Indemnification.
(a) The
Company agrees to indemnify and reimburse, to the fullest extent
permitted by law, each Holder that is a seller of Registrable
Securities, and each of its employees, advisors, agents,
representatives, partners, officers, and directors and each Person
who controls such Holder (within the meaning of the Securities Act
or the Exchange Act) and any agent or investment advisor thereof
(collectively, the “Seller Affiliates”) (i)
against any and all losses, claims, damages, liabilities and
expenses, joint or several (including, without limitation,
reasonable attorneys’ fees and disbursements except as
limited by Section
2.7(c)) based upon, arising out of, related to or resulting
from any untrue or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus or any
amendment thereof or supplement thereto, or any omission or alleged
omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii)
against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission
or alleged untrue statement or omission, and (iii) against any and
all costs and expenses (including reasonable fees and disbursements
of counsel) as may be reasonably incurred in investigating,
preparing or defending against any litigation, investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission
or alleged untrue statement or omission, or such violation of the
Securities Act or Exchange Act, to the extent that any such expense
or cost is not paid under subparagraph (i) or (ii) above; except
insofar as any such statements are made in reliance upon
information furnished to the Company in writing by such seller or
any Seller Affiliate expressly for use therein. The reimbursements
required by this Section
2.7(a) will be made by periodic payments during the course
of the investigation or defense, as and when bills are received or
expenses incurred.
(b) In
connection with any Registration Statement in which a Holder that
is a seller of Registrable Securities is participating, each such
Holder will furnish to the Company such information and affidavits
as the Company reasonably requests for use in connection with any
such Registration Statement or Prospectus and, to the fullest
extent permitted by law, each such seller will indemnify the
Company and its directors and officers and each Person who controls
the Company (within the meaning of the Securities Act or the
Exchange Act) against any and all losses, claims, damages,
liabilities and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements except as limited by
Section 2.7(c))
resulting from any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, Prospectus
or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any
information or affidavit so furnished by such seller or any of its
Seller Affiliates in writing specifically for inclusion in the
Registration Statement; provided that the obligation to
indemnify will be several, not joint and several, among such
sellers of Registrable Securities, and the liability of each such
seller of Registrable Securities will be in proportion to the
amount of Registrable Securities registered by them, and,
provided,
further, that such
liability will be limited to the amount received by such seller
from the sale of Registrable Securities pursuant to such
Registration Statement; provided, however, that such seller of
Registrable Securities shall not be liable in any such case to the
extent that prior to the filing of any such Registration Statement
or Prospectus, such seller has furnished to the Company information
expressly for use in such Registration Statement or Prospectus or
any amendment thereof or supplement thereto which corrected or made
not misleading information previously furnished to the
Company.
10
(c) Any
Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to
give such notice shall not limit the rights of such Person) and
(ii) unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (A) the indemnifying party has agreed
to pay such fees or expenses or (B) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the
indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but
such consent will not be unreasonably withheld, conditioned or
delayed). If such defense is assumed by the indemnifying party
pursuant to the provisions hereof, such indemnifying party shall
not settle or otherwise compromise the applicable claim unless (i)
such settlement or compromise contains a full and unconditional
release of the indemnified party or (ii) the indemnified party
otherwise consents in writing (which consent will not be
unreasonably withheld, conditioned or delayed). An indemnifying
party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party, a conflict of
interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event
the indemnifying party shall be obligated to pay the reasonable
fees and disbursements of such additional counsel or
counsels.
(d)
Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.7(a) or Section 2.7(b) are unavailable
to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, liabilities
or expenses (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or
expenses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified
party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7(d) were determined
by pro rata allocation (even if the Holders or any underwriters or
all of them were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to in this Section 2.7(d). The amount paid
or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or, except as provided in
Section 2.7(c),
defending any such action or claim. Notwithstanding the provisions
of this Section
2.7(d), no Holder shall be required to contribute an amount
greater than the dollar amount by which the proceeds received by
such Holder with respect to the sale of any Registrable Securities
exceeds the amount of damages which such Holder has otherwise been
required to pay by reason of any and all untrue or alleged untrue
statements of material fact or omissions or alleged omissions of
material fact made in any Registration Statement or Prospectus or
any amendment thereof or supplement thereto related to such sale of
Registrable Securities. 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. The
Holders’ obligations in this Section 2.7(d) to contribute
shall be several in proportion to the amount of Registrable
Securities registered by them and not joint.
11
If
indemnification is available under this Section 2.7, the indemnifying
parties shall indemnify each indemnified party to the full extent
provided in Section
2.7(a) and Section
2.7(b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.7(d) subject, in the
case of the Holders, to the limited dollar amounts set forth in
Section
2.7(b).
(e) The
indemnification and contribution provided for under this Agreement
will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party
and will survive the transfer of securities.
2.8
Transfer of
Registration Rights. The registration rights of a Holder
under this Agreement with respect to any Registrable Securities may
be transferred or assigned to any purchaser or transferee of
Registrable Securities; provided, however, that (i) such Holder
shall give the Company written notice prior to the time of such
transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under
this Agreement are being transferred; (ii) such transferee shall
agree in writing, in form and substance reasonably satisfactory to
the Company, to be bound as a Holder by the provisions of this
Agreement; (iii) such transferee is not a direct competitor of the
Company; and (iv) immediately following such transfer the further
disposition of such securities by such transferee shall be
restricted to the extent set forth under applicable
law.
2.9
Current
Public Information. With a view to making available to the
Holders of Registrable Securities the benefits of Rule 144 and Rule
144A promulgated under the Securities Act and other rules and
regulations of the SEC that may at any time permit a Holder of
Registrable Securities to sell securities of the Company to the
public without registration, the Company covenants that it will (i)
use its commercially reasonable efforts to file in a timely manner
all reports and other documents required, if any, to be filed by it
under the Securities Act and the Exchange Act and the rules and
regulations adopted thereunder and (ii) make available information
necessary to comply with Rule 144 and Rule 144A, if available with
respect to resales of the Registrable Securities under the
Securities Act, at all times, all to the extent required from time
to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation
of the exemptions provided by (x) Rule 144 and Rule 144A
promulgated under the Securities Act (if available with respect to
resales of the Registrable Securities), as such rules may be
amended from time to time or (y) any other rules or regulations now
existing or hereafter adopted by the SEC.
2.10
Company
Obligations Regarding Transfers. In connection with any sale
or transfer of Registrable Securities by any Holder, including any
sale or transfer pursuant to Rule 144 and Rule 144A promulgated
under the Securities Act and other rules and regulations of the SEC
that may at any time permit a Holder of Registrable Securities to
sell securities of the Company to the public without registration,
the Company shall, to the extent allowed by law, take any and all
action necessary or reasonably requested by such Holder in order to
permit or facilitate such sale or transfer, including, without
limitation, at the sole expense of the Company, by (i) issuing such
directions to any transfer agent, registrar or depositary, as
applicable, (ii) delivering such opinions to the transfer agent,
registrar or depositary as are requested by the same, and (iii)
taking or causing to be taken such other actions as are reasonably
necessary (in each case on a timely basis) in order to cause any
legends, notations or similar designations restricting
transferability of the Registrable Securities held by such Holder
to be removed and to rescind any transfer restrictions (other than
as may apply pursuant to Section 2.3) with respect to
such Registrable Securities.
2.11
No
Conflict of Rights. The Company represents and warrants that
it has not granted, and is not subject to, any registration rights
that are superior to, inconsistent with or that in any way violate
or subordinate the rights granted to the Holders hereby. The
Company shall not, prior to the termination of this Agreement,
grant any registration rights that are superior to, inconsistent
with or that in any way violate or subordinate the rights granted
to the Holders hereby.
12
2.12
Free
Writing Prospectuses. The Company shall not permit any
officer, director, underwriter, broker or any other person acting
on behalf of the Company to use any free writing prospectus (as
defined in Rule 405 under the Securities Act) in connection with
any registration statement covering Registrable Securities, without
the prior written consent of each participating Holder and any
underwriter. No Holder shall, or permit any officer, manager,
underwriter, broker or any other person acting on behalf of such
Holder to use any free-writing prospectus in connection with any
registration statement covering Registrable Securities, without the
prior written consent of the Company.
ARTICLE
III - TERMINATION
3.1
Termination.
The provisions of this Agreement shall terminate and be of no
further force and effect upon the earlier of (a) the fourth
anniversary of the date of the effectiveness of the Registration
Statement contemplated by Section 2.1(a), provided that this
four-year period shall be extended to account for any period of
time in which registration hereunder is unavailable (during a
Suspension Period or the period of time contemplated by Section
2.5, during a suspension of the effectiveness of the Registration
Statement or a suspension of the qualification of Registrable
Securities for sale, or otherwise) and (b) the date when there
shall no longer be any Registrable Securities outstanding;
provided, however, that notwithstanding the foregoing, the
obligations of the Company under Section 2.10 shall not terminate
and shall remain in effect until there shall no longer be any
Registrable Securities outstanding.
ARTICLE
IV - MISCELLANEOUS
4.1
Notices. Any
notice or other communication required or permitted hereunder shall
be in writing and shall be delivered by hand, by facsimile
transmission or electronic mail transmission, or by certified or
registered mail, postage prepaid and return receipt requested.
Notices shall be deemed to have been given upon delivery, if
delivered by hand, three days after mailing, if mailed, and upon
receipt of an appropriate electronic confirmation, if delivered by
facsimile or electronic mail transmission. Notices shall be
delivered to the parties at the addresses set forth
below:
If to
the Company:
Yuma
Energy, Inc.
Attention:
Chief Executive Officer
0000
Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Phone:
(000) 000-0000
With
copies to (which shall not constitute notice):
Xxxxx
& Xxxxxx, P.C.
Attention:
Xxxx X. Xxxxxxx, Esq.
0000
Xxxxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxx@xxxxxxxxxxx.xxx
If to
any Holder, at its address listed on the signature pages
hereof.
Any
party may from time to time change its address or designee for
notification purposes by giving the other parties prior notice in
the manner specified above of the new address or the new designee
and the subsequent date upon which the change shall be
effective.
13
4.2
Choice
of Law; Exclusive Jurisdiction; Waiver of Jury Trial.
(a)
This Agreement shall be constructed, interpreted and enforced in
accordance with, and the respective rights and obligations of the
parties shall be governed by, the laws of the State of Delaware
without regard to principles of conflicts of law.
(b) All
actions and proceedings for the enforcement of or based on, arising
out of or relating to this Agreement shall be heard and determined
exclusively in the Delaware Court of Chancery (or, only if the
Delaware Court of Chancery declines to accept jurisdiction over the
particular matter, any other court of the State of Delaware, or any
federal court sitting in the State of Delaware), and each of the
parties hereto hereby (i) irrevocably submits to the exclusive
jurisdiction of such courts (and, in the case of appeals,
appropriate appellate courts therefrom) in any such action or
proceeding, (ii) irrevocably waives the defense of an inconvenient
forum to the maintenance of any such action or proceeding, (iii)
agrees that it shall not bring any such action in any court other
than the Court of Chancery of the State of Delaware (or, only if
the Delaware Court of Chancery declines to accept jurisdiction over
the particular matter, any other court of the State of Delaware, or
any federal court sitting in the State of Delaware), and (iv)
irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at
which Member or Parent, as the case may be, is to receive notice in
accordance with Section
4.2. The parties hereto agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law.
(c)
Each of the parties hereto hereby irrevocably waives any and all
rights to trial by jury in any legal proceeding arising out of or
related to this Agreement.
4.3
No
Third-Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto and their respective successors and
permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever, under
or by reason of this Agreement; provided, however, the parties
hereto hereby acknowledge that the Persons set forth in
Section 2.3 and
Section 2.7 are
express third-party beneficiaries of the obligations of the parties
hereto set forth in Section 2.3 and Section 2.7,
respectively.
4.4
Successors and
Assigns. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and benefit the Company, each
Holder and their respective successors and assigns. The Company
shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be
the surviving entity unless the surviving entity shall, prior to
such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under this Agreement, and for
that purpose references hereunder to “Registrable
Securities” shall be deemed to include the common equity
interests or other securities, if any, which the Holders would be
entitled to receive in exchange for Registrable Securities under
any such merger, consolidation or reorganization, provided that, to
the extent the Holders receive securities that are by their terms
convertible into common equity interests of the issuer thereof,
then any such common equity interests as are issued or issuable
upon conversion of said convertible securities shall be included
within the definition of “Registrable
Securities.”
4.5
Counterparts.
This Agreement may be executed by the parties in separate
counterparts (including by means of executed counterparts delivered
via facsimile or other electronic means), each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument.
4.6
Severability.
In case any provision in this Agreement shall be held invalid,
illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in
every other respect and the remaining provisions shall not in any
way be affected or impaired thereby.
4.7
No
Waivers; Amendments.
(a) No
failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Company or any Holder
at law or in equity or otherwise.
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(b) Any
provision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the
Company and the Required Holders
4.8
Entire
Agreement. This Agreement and the other writings referred to
herein or therein or delivered pursuant hereto or thereto, contain
the entire agreement between the Holders and the Company with
respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect
thereto.
4.9
Remedies; Specific
Performance.
(a)
Each Holder shall have all rights and remedies reserved for such
Holder pursuant to this Agreement and all rights and remedies which
such Holder has been granted at any time under any other agreement
or contract and all of the rights which such Holder has under any
law or equity. Any Person having any rights under any provision of
this Agreement will be entitled to enforce such rights
specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights
granted by law or equity.
(b) The
parties hereto recognize and agree that money damages may be
insufficient to compensate the Holders of any Registrable
Securities for breaches by the Company of the terms hereof and,
consequently, that the Holders shall be entitled to the equitable
remedies of injunctive relief and of specific performance of the
terms hereof in the event of any such breach. If any action should
be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that
there is an adequate remedy at law.
4.10
Negotiated
Agreement. This Agreement was negotiated by the parties with
the benefit of legal representation, and any rule of construction
or interpretation otherwise requiring this Agreement to be
construed or interpreted against any party shall not apply to the
construction or interpretation hereof.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the
date first written above.
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YUMA
ENERGY, INC.
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By:
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/s/
Xxx X.
Xxxxx
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Name: |
Xxx X.
Xxxxx
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Title: | President and Chief Executive Officer |
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Counterpart Signature Page
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FOR ENTITY INVESTORS:
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RMCP PIV DPC, LP
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By: RMCP DPC LLC, its General Partner
By: Red Mountain Capital Partners, its managing member
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Managing Partner
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Taxpayer ID #:
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FOR ENTITY INVESTORS:
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RMCP PIV DPC II, LP (RED MOUNTAIN)
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By: RMCP DPC II LLC, its General Partner
By: Red Mountain Capital Partners, its managing member
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Managing Partner
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Taxpayer ID #:
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FOR ENTITY INVESTORS:
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XXXXX PETROLEUM INVESTMENT, LLC
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By: Evercore Capital Partners II, LP, its managing
member
By: Evercore Partners II L.L.C., its general partner
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx Xxxxx
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Title:
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Authorized Person
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Taxpayer ID #:
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FOR ENTITY INVESTORS:
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SANKATY XXXXX, LLC
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx X. Xxxxxx
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Title:
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Managing Director
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Taxpayer ID #:
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FOR ENTITY INVESTORS:
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DOVER STREET VII L.P.
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By: Dover VII Associates L.P., its general partner
By: Dover VII Associates LLC, its general partner
By: HarbourVest Partners, LLC, its managing member
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By:
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/s/ Xxxx X. Xxxxxx, Xx.
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Name:
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Xxxx X. Xxxxxx, Xx.
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Title:
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Managing Director
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Taxpayer ID #:
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FOR ENTITY INVESTORS:
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HARBOURVEST PARTNERS VIII-BUYOUT FUND L.P.
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By: HarbourVest VIII-Buyout Associates L.P., its general
partner
By: HarbourVest VIII-Buyout Associates LLC, its general
partner
By: HarbourVest Partners, LLC, its managing member
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By:
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/s/ Xxxx X. Xxxxxx, Xx.
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Name:
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Xxxx X. Xxxxxx, Xx.
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Title:
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Managing Director
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Taxpayer ID #:
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FOR ENTITY INVESTORS:
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XXXX-ECP2 HOLDINGS, LP
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By: Xxxx Capital Fund Management, L.L.C., its general
partner
By: Xxxx Capital Advisors, L.L.C., its manager
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By:
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/s/ Xxxxxxx Xxxxxx
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Name:
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Xxxxxxx Xxxxxx
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Title:
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Manager
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Taxpayer ID #:
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Counterpart Signature Page
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FOR INDIVIDUAL INVESTORS:
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Signature:
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/s/ Xxx X. Xxxxx
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Name:
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Xxx X. Xxxxx
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Signature:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Signature:
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/s/ Xxxxxx X. Xxxxxxxx
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Name:
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Xxxxxx X. Xxxxxxxx
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Signature:
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/s/ Xxxxx X. Xxxxx
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Name:
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Xxxxx X. Xxxxx
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Signature:
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/s/ Xxxxxxx X. Xxxxxxxxx
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Name:
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Xxxxxxx X. Xxxxxxxxx
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Signature:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx Xxxxx
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Signature
Page to Registration Rights Agreement
