REGISTRATION RIGHTS AGREEMENT BY AND AMONG NORTHERN OIL & GAS, INC., AND THE INVESTORS PARTY HERETO SEPTEMBER ___, 2007
Exhibit
10.3
BY
AND AMONG
NORTHERN
OIL & GAS, INC.,
AND
THE
INVESTORS PARTY HERETO
SEPTEMBER
___, 2007
TABLE
OF CONTENTS
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Page
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ARTICLE
1 Definitions
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1
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ARTICLE
2 Registration Rights
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3
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2.1
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Required
Registration
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3
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2.2
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Current
Public Information
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3
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2.3
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Demand
Registration
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4
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2.4
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Piggyback
Registration
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6
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2.5
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Holdback
Agreements
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7
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2.6
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Registration
Procedures
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8
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2.7
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Conditions
Precedent to Company’s Obligations Pursuant to this
Agreement
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10
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2.8
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Fees
and Expenses
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11
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2.9
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Indemnification
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12
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2.10
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Participation
in Registrations
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15
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ARTICLE
3 Transfers of Certain Rights
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15
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3.1
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Transfer
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15
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3.2
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Transferees
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15
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3.3
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Subsequent
Transferees
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16
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ARTICLE
4 Miscellaneous
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16
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4.1
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Recapitalizations,
Exchanges, etc
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16
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4.2
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No
Inconsistent Agreements
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16
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4.3
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Amendments
and Waivers
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16
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4.4
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Severability
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16
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4.5
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Counterparts
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16
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4.6
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Notices
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16
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4.7
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Governing
Law; Forum
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17
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4.8
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Captions
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17
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4.9
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No
Prejudice
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17
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4.10
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Words
in Singular and Plural Form
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17
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4.11
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Remedy
for Breach
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17
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4.12
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Successors
and Assigns, Third Party Beneficiaries
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18
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4.13
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Entire
Agreement
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18
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4.14
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Attorneys’
Fees
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18
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4.15
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Termination
of Rights
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18
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4.16
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Force
Majeure
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18
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This
REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated
as of September ___, 2007, is entered into by and among NORTHERN OIL & GAS,
INC., a Nevada corporation (the "Company"),
and
the Persons set forth on the signature pages attached hereto (each a
"Purchaser"
and,
together, the "Purchasers").
RECITALS:
A. The
Company desires to issue and sell 4,242,424 shares of its Common Stock to the
Purchasers (the "Offering")
as set
forth in separate Subscription Agreements, each dated on or about the date
hereof, entered into by and between the Company and the Purchasers (the
Subscription Agreements collectively, the "Purchase
Agreement");
B. It
is a
condition precedent to the consummation of the transactions contemplated by
the
Purchase Agreement that the Company provide for the rights set forth in this
Agreement; and
C. Certain
terms used in this Agreement are defined in Article
1
hereof.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, the parties hereto hereby agree as
follows:
Definitions
"Affiliate"
means
any Person that directly or indirectly controls, or is under common control
with, or is controlled by such Person. As used in this definition, "control"
(including with its correlative meanings, "controlled by" and "under common
control with") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"Business
Day"
means
any day excluding Saturday, Sunday or any other day that is a legal holiday
under the laws of the State of Minnesota or is a day on which banking
institutions therein located are authorized or required by law or other
governmental action to close.
"Closing
Date"
means
September ___, 2007.
"Common
Stock"
means
the common stock, par value $0.001 per share, of the Company.
"Company"
has the
meaning set forth in the preamble.
"Designated
Holder"
means a
holder of Registrable Securities.
1
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
"Indemnified
Party"
has the
meaning set forth in Section
2.9.
"Losses"
has the
meaning set forth in Section
2.9.
"Majority
Holders"
means
holders of a majority of the Registrable Securities.
"Offering"
has the
meaning set forth in the preamble.
"Person"
means
any individual, company, corporation, limited liability company, partnership,
firm, joint venture, association, joint-stock company, trust, unincorporated
organization, governmental body or other entity.
"Piggyback
Registration" has
the
meaning set forth in Section
2.4.
"Purchaser(s)"
has the
meaning set forth in the preamble.
"Registration
Period"
means
the two years, plus any additional periods required by the second paragraph
of
Section
2.1,
during
which the Registration Statement contemplated by Section
2.1
is
required to remain effective.
"Registrable
Securities"
means,
subject to the immediately following sentences, (i) shares of Common Stock
acquired by the Purchasers from the Company pursuant to the Purchase Agreement
and shares of Common Stock issuable upon the exercise of warrants acquired
by
the Purchasers from the Company pursuant to the Purchase Agreement, and (ii)
any
shares of Common Stock issued or issuable, directly or indirectly, with respect
to the securities referred to in clause (i) by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. In addition, any particular shares of
Common Stock constituting Registrable Securities will cease to be Registrable
Securities when they (x) have been effectively registered under the Securities
Act and disposed of in accordance with a Registration Statement covering them,
(y) have been sold to the public pursuant to Rule 144 (or by similar provision
under the Securities Act), or (z) are eligible for resale under Rule 144(k)
(or
by similar provision under the Securities Act) without any limitation on the
amount of securities that may be sold under paragraph (e) thereof.
"Registration
Statement"
means a
registration statement on Form S-3 (or, if the Company is not eligible to use
Form S-3, such other appropriate registration form of the SEC pursuant to which
the Company is eligible to register the resale of Registrable Securities) filed
by the Company under the Securities Act that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such registration statement, that shall permit the Purchasers
to
offer and sell, on a delayed or continuous basis pursuant to Rule 415 under
the
Securities Act, the Registrable Securities.
2
"Representatives"
has the
meaning set forth in Section
2.9.
"Required
Filing Date"
has the
meaning set forth in Section
2.1.
"Required
Registration Statement" has
the
meaning set forth in Section
2.1.
"SEC"
means
the United States 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, and the rules and regulations of the
SEC
promulgated thereunder.
"Purchase
Agreement"
has the
meaning set forth in the recitals.
Registration
Rights
(a) Required
Registration.
The
Company shall use its best efforts to prepare and as promptly as possible after
the date hereof, but in any event not later than 30 days from the Closing Date
(or, if such 30th
day is
not a Business Day, by the first Business Day thereafter) (the "Required
Filing Date"),
file
a Registration Statement with the SEC (the "Required
Registration Statement")
and
cause the Required Registration Statement to be declared effective under the
Securities Act within 90 days after the Closing Date (or, if such 90th
day is
not a Business Day, by the first Business Day thereafter). The Company agrees
to
include in the Required Registration Statement all information that the
Designated Holders shall reasonably request. If the Company fails to file the
Required Registration Statement or if the Registration Statement is not
effective within the periods set forth above, the Company shall pay each
Purchaser an amount per month equal to 1% of the aggregate purchase price paid
by such Purchaser in the Offering until such time as the Company makes such
filing or causes the Registration Statement to become effective, as
applicable.
The
Company shall use its best efforts to keep the Required Registration Statement
continuously effective for a period of two years after the Registration
Statement first becomes effective, plus the number of days during which such
Registration Statement was not effective or usable pursuant to Sections
2.5(b),
2.6(e)
or
2.6(i),
or such
shorter period as will terminate when all of the Registrable Securities covered
by the Required Registration Statement have been disposed of in accordance
with
the Required Registration Statement or have otherwise ceased to be Registrable
Securities. In the event the Company shall give any notice pursuant to
Sections
2.6(e)
or
2.6(i),
the
additional time period mentioned in this Section
2.1
during
which the Required Registration Statement is to remain effective shall be
extended by the number of days during the period from and including the date
of
the giving of such notice pursuant to Sections
2.6(e)
or
2.6(i)
to and
including the date when each seller of a Registrable Security covered by the
Registration Statement shall have received the copies of the supplemented or
amended prospectus contemplated by Sections
2.6(e).
(b) Current
Public Information.
The
Company covenants that it will use its best efforts to file all reports required
to be filed by it under the Exchange Act and the rules and regulations adopted
by the SEC thereunder, and will use its best efforts to take such further action
as the Majority Holders may reasonably request, all to the extent required
to
enable the holders of Registrable Securities to sell Registrable Securities
pursuant to Rule 144 or Rule 144A adopted by the SEC under the Securities Act
or
any similar rule or regulation hereafter adopted by the SEC. The Company shall,
upon the request of a Designated Holder, deliver to such Designated Holder
a
written statement as to whether it has complied with such requirements during
the twelve month period immediately preceding the date of such
request.
3
(c) Demand
Registration.
Subject
to Section
2.3(g),
upon the written request of the Majority Holders, requesting that the Company
effect the registration under the Securities Act of all or part of such
Designated Holders’ Registrable Securities and specifying the intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all Designated Holders, and thereupon the Company
will
use its best efforts to effect as expeditiously as possible the registration
under the Securities Act of the following:
(i) the
Registrable Securities that the Company has been so requested to be registered
by such Designated Holders for disposition in accordance with the intended
method of disposition stated in such request;
(ii) all
other
Registrable Securities the holders of which shall have made a written request
to
the Company for registration thereof within 30 days after the giving of such
written notice by the Company (which request shall specify the intended method
of disposition of such Registrable Securities); and
(iii) all
shares of Common Stock which the Company or Persons entitled to exercise
"piggy-back" registration rights pursuant to contractual commitments of the
Company ("Rights
Holders")
may
elect to register in connection with the offering of Registrable Securities
pursuant to this Section
2.3;
all
to
the extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities and the additional
shares of Common Stock, if any, so to be registered; provided, that, the
provisions of this Section
2.3
shall
not require the Company to effect more than one registration of Registrable
Securities in addition to the Required Registration Statement contemplated
by
Section
2.1.
The
registrations under this Section
2.3
shall be
on an appropriate Registration Statement that permits the disposition of such
Registrable Securities in accordance with the intended methods of distribution
specified by the Majority Holders in their request for registration. The Company
agrees to include in any such Registration Statement all information that the
Designated Holders of Registrable Securities being registered shall reasonably
request.
A
registration requested pursuant to this Section
2.3
shall
not be deemed to have been effected (i) unless a Registration Statement with
respect thereto has become effective; provided, that a Registration Statement
that does not become effective after the Company has filed a Registration
Statement with respect thereto solely by reason of the refusal to proceed of
the
Majority Holders (other than a refusal to proceed based upon the advice of
counsel relating to a matter with respect to the Company) shall be deemed to
have been effected by the Company at the request of the Majority Holders unless
the Designated Holders electing to have Registrable Securities registered
pursuant to such Registration Statement shall have elected to pay all fees
and
expenses otherwise payable by the Company in connection with such registration
pursuant to Section
2.8,
(ii)
if, after it has become effective, such registration is withdrawn by the Company
(other than at the request of the Majority Holders) or interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason prior to the expiration of a 180-day
period following such Registration Statement’s effectiveness, or (iii) if the
conditions to closing specified in any purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied,
other than due solely to some act or omission by the Designated Holders electing
to have Registrable Securities registered pursuant to such Registration
Statement.
4
If
a
requested registration pursuant to this Section
2.3
involves
an underwritten offering, the underwriter or underwriters thereof shall be
selected by the holders of a majority (by number of shares) of the Registrable
Securities requested to be included in such Registration Statement and shall
be
reasonably acceptable to the Company.
If
a
requested registration pursuant to this Section
2.3
involves
an underwritten offering, and the managing underwriter shall advise the Company
in writing (with a copy to each Designated Holder of Registrable Securities
requesting registration) that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company and Right Holders that are not Registrable Securities) exceeds the
number which can be sold in such offering within a price range reasonably
acceptable to the Company and to the holders of a majority (by number of shares)
of the Registrable Securities requested to be included in such Registration
Statement, the Company will include in such registration, to the extent of
the
number that the Company is so advised can be sold in such offering, (i) first,
the Registrable Securities that have been requested to be included in such
registration by the Designated Holders pursuant to this Agreement (pro rata
based on the amount of Registrable Securities sought to be registered by such
persons), (ii) second, provided that no securities sought to be included by
the
Designated Holders have been excluded from such registration, the securities
of
other persons entitled to exercise "piggy-back" registration rights pursuant
to
contractual commitments of the Company (pro rata based on the amount of
securities sought to be registered by such persons) and (iii) third, securities
the Company proposes to register.
The
Company shall use its best efforts to keep any Registration Statement filed
pursuant to this Section
2.3
continuously effective (i) for a period of one year after the Registration
Statement first becomes effective, plus the number of days during which such
Registration Statement was not effective or usable pursuant to Sections
2.5(b),
2.6(e)
or
2.6(i);
(ii) if
such Registration Statement related to an underwritten offering, for such period
as in the opinion of counsel for the underwriters a prospectus is required
by
law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer, or (iii) for such shorter period as will terminate when
all of the Registrable Securities covered by the Required Registration Statement
have been disposed of in accordance with the Required Registration Statement
or
have otherwise ceased to be Registrable Securities. In the event the Company
shall give any notice pursuant to Sections
2.6(e)
or
2.6(i),
the
additional time period mentioned in Section
2.3(f)(i)
during
which the Required Registration Statement is to remain effective shall be
extended by the number of days during the period from and including the date
of
the giving of such notice pursuant to Sections 2.6(e)
or
2.6(i)
to and
including the date when each seller of a Registrable Security covered by the
Registration Statement shall have received the copies of the supplemented or
amended prospectus contemplated by Sections
2.6(e).
5
The
right
of Designated Holders to register Registrable Securities pursuant to this
Section
2.3
is only
exercisable following the expiration of the Registration Period or, if, prior
to
the expiration of the Registration Period, the Company becomes ineligible to
register the Registrable Securities on the Registration Statement contemplated
by Section
2.1
or such
Registration Statement otherwise becomes unusable or ineffective and the Company
is not able to correct the misstatements, have the applicable stop order
rescinded or otherwise restore the effectiveness of the Registration Statement
as contemplated by this Agreement.
(d) Piggyback
Registration.
Whenever
the Company proposes to register any of its securities under the Securities
Act
(other than pursuant to a registration pursuant to Section
2.3
or a
registration on Form S-4 or S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable
Securities, whether or not for sale for its own account, the Company will give
prompt written notice (but in no event less than 25 days before the anticipated
filing date) to all Designated Holders, and such notice shall describe the
proposed registration and distribution and offer to all Designate Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request. The Company will include in such registration
statement all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the
Designated Holders’ receipt of the Company’s notice (a "Piggyback
Registration").
The
Company shall use its best efforts to cause the managing underwriter or
underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in a Piggyback Registration to be included
on the same terms and conditions as any similar securities of the Company or
any
other security holder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof.
Any
Designated Holder shall have the right to withdraw its request for inclusion
of
its Registrable Securities in any Registration Statement pursuant to this
Section
2.4
by
giving written notice to the Company of its request to withdraw; provided that
in the event of such withdrawal (other than pursuant to Section
2.4(e)
hereof,
the Company shall not be required to reimburse such holder for the fees and
expenses referred to in Section
2.8
hereof
incurred by such Designated Holder prior to such withdrawal, unless such
withdrawal was due to a material adverse change to the Company. The Company
may
withdraw a Piggyback Registration at any time prior to the time it becomes
effective.
If
(i) a
Piggyback Registration involves an underwritten offering of the securities
being
registered, whether or not for sale for the account of the Company, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and Designated Holders requesting such registration
by
letter of its belief that the distribution of all or a specified number of
such
Registrable Securities concurrently with the securities being distributed by
such underwriters would interfere with the successful marketing of the
securities being distributed by such underwriters (such writing to state the
basis of such belief and the approximate number of such Registrable Securities
that may be distributed without such effect), then the Company will be required
to include in such registration only the amount of securities which it is so
advised should be included in such registration. In such event: (x) in cases
initially involving the registration for sale of securities for the Company’s
own account, securities shall be registered in such offering in the following
order of priority: (i) first, the securities which the Company proposes to
register, (ii) second, Registrable Securities and securities which have been
requested to be included in such registration by Persons entitled to exercise
"piggy-back" registration rights pursuant to contractual commitments of the
Company (pro rata based on the amount of securities sought to be registered
by
Designated Holders and such other Persons); and (y) in cases not initially
involving the registration for sale of securities for the Company’s own account,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities of any Person whose exercise of a "demand"
registration right pursuant to a contractual commitment of the Company is the
basis for the registration, (ii) second, Registrable Securities and
securities which have been requested to be included in such registration by
Persons entitled to exercise "piggy-back" registration rights pursuant to
contractual commitments of the Company (pro rata based on the amount of
securities sought to be registered by Designated Holders and such other
Persons), (iii) third, the securities which the Company proposes to
register.
6
If,
as a
result of the proration provisions of this Section
2.4,
any
Designated Holders shall not be entitled to include all Registrable Securities
in a Piggyback Registration that such Designated Holders has requested to be
included, such holder may elect to withdraw his request to include Registrable
Securities in such registration.
The
right
of the Designated Holders to register Registrable Securities pursuant to this
Section
2.4
is only
exercisable with respect to Registrable Securities not then covered by an
effective Registration Statement contemplated by Section
2.1
or
Section
2.3.
The
rights of the Designated Holders under this Section
2.4
shall
survive the expiration of the Registration Period.
(e) Holdback
Agreements.
To
the
extent not inconsistent with applicable law, in connection with a public
offering of securities of the Company, upon the request of the Company or the
underwriter, in the case of an underwritten public offering of the Company’s
securities, each Designated Holder who beneficially owns (as defined in Rule
13d-3 adopted by the SEC under the Exchange Act) at least 5% of the outstanding
capital stock of the Company will not effect any public sale or distribution
(other than those included in the registration statement being filed with
respect to such public offering) of any securities of the Company, or any
securities, options or rights convertible into or exchangeable or exercisable
for such securities during the 14 days prior to and the 180-day period beginning
on such effective date, unless (in the case of an underwritten public offering)
the managing underwriters otherwise agree to a shorter period of time.
Notwithstanding the foregoing, no Designated Holder shall be required to enter
into any such "lock-up" agreement unless and until all of the Company’s
executive officers and directors execute substantially similar "lock-up"
agreements and the Company uses commercially reasonable efforts to cause each
holder of more than 5% of its outstanding capital stock to execute substantially
similar "lock-up" agreements. Neither the Company nor the underwriter shall
amend, terminate or waive a "lock-up" agreement unless each "lock-up" agreement
with a Designated Holder is also amended or waived in a similar manner or
terminated, as the case may be.
7
The
Company shall have the right at any time, to suspend the filing of a
Registration Statement under Section
2.3
or
require that the Designated Holders of Registrable Securities suspend further
open market offers and sales of Registrable Securities pursuant to a
Registration Statement filed hereunder for a period not to exceed an aggregate
of 30 days in any six-month period or an aggregate of 60 days in any
twelve-month period for valid business reasons (not including avoidance of
their
obligations hereunder) (i) to avoid premature public disclosure of a pending
corporate transaction, including pending acquisitions or divestitures of assets,
mergers and combinations and similar events; and (ii) upon the occurrence of
any
of the events specified in Sections
2.6(e)
or
2.6(i).
If the
Company violates the provisions of this Section 2.5(b), it shall pay each
Purchaser a penalty equal to equal to 1% of the aggregate purchase price paid
by
such Purchaser in the Offering until such time as the applicable suspension
has
been lifted by the Company.
(f) Registration
Procedures.
The
Company will use its best efforts to effect the registration of Registrable
Securities pursuant to this Agreement in accordance with the intended methods
of
disposition thereof, and pursuant thereto the Company will as expeditiously
as
possible:
before
filing the Registration Statement, the Company will furnish to the counsel
selected by the holders of a majority of the Registrable Securities included
in
such Registration Statement a copy of such Registration Statement, and will
provide such counsel with all correspondence with the SEC regarding the
Registration Statement;
prepare
and file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary
to
keep such Registration Statement effective for the period provided for in
Section
2.1
or
Section 2.3,
or the
periods contemplated by the Company or the Persons requesting any Registration
Statement filed pursuant to Section
2.4;
furnish
to each seller of Registrable Securities such number of copies of such
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;
use
its
best efforts to register or qualify such Registrable Securities under such
other
state securities or blue sky laws as any seller reasonably requests and do
any
and all other acts and things which may be reasonably necessary or advisable
to
enable such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller and to keep each such registration
or qualification (or exemption therefrom) effective during the period which
the
Registration Statement is required to be kept effective (provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction, or
(iii)
consent to general service of process in any such jurisdiction);
8
notify
each seller of such Registrable Securities, 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 contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not misleading in the light
of
the circumstances under which they were made, and, at the request of any such
seller, the Company will as soon as possible prepare and furnish to such seller
a reasonable number of copies of a supplement or amendment to such prospectus
so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or
omit
to state any fact necessary to make the statements therein not misleading in
the
light of the circumstances under which they were made;
cause
all
such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed and, if not so listed,
to be approved for trading on any automated quotation system of a national
securities association on which similar securities of the Company are
quoted;
provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
enter
into such customary agreements (including underwriting agreements) and take
all
other customary and appropriate actions as the holders of a majority of the
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities;
notify
each Designated Holder of any stop order issued or threatened by the SEC or
any
pending proceeding against the Company under Section 8A of the Securities Act
in
connection with an offering of Registrable Securities;
otherwise
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the
first
day of the Company’s first full calendar quarter after the effective date of the
Registration Statement, which earnings statement shall satisfy the provisions
of
Section 11(a) of the Securities Act and Rule 158 thereunder;
in
the
event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of
any
related prospectus or suspending the qualification of any securities included
in
such Registration Statement for sale in any jurisdiction, the Company will
use
its best efforts to promptly obtain the withdrawal of such order;
9
if
requested by a Designated Holder, obtain one or more comfort letters, dated
the
effective date of the Registration Statement (and, if such registration includes
an underwritten offering, dated the date of the closing under the underwriting
agreement), signed by the Company’s independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request;
provide
a
legal opinion of the Company’s outside counsel, dated the effective date of such
Registration Statement (and, if such registration includes an underwritten
offering, dated the date of the closing under the underwriting agreement),
with
respect to the Registration Statement, each amendment and supplement thereto,
the prospectus included therein (including the preliminary prospectus) and
such
other documents relating thereto in customary form and covering such matters
of
the type customarily covered by legal opinions of such nature;
subject
to execution and delivery of mutually satisfactory confidentiality agreements,
make available at reasonable times for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition of such
Registrable Securities pursuant to the Registration Statement, and any attorney,
accountant or other agent retained by such seller or any managing underwriter,
during normal business hours of the Company at the Company’s corporate office
and without unreasonable disruption of the Company’s business or unreasonable
expense to Company and solely for the purpose of due diligence with respect
to
the Registration Statement, legally disclosable, financial and other records
and
pertinent corporate documents of the Company reasonably requested by such
persons, and cause the Company’s employees and independent accountants to supply
all similar information reasonably requested by any such seller, managing
underwriter, attorney, accountant or agent in connection with the Registration
Statement, as shall be reasonably necessary to enable them to exercise their
due
diligence responsibility;
cooperate
with each seller of Registrable Securities and each underwriter participating
in
the disposition of such Registrable Securities and their respective counsel
in
connection with any filings required to be made with the National Association
of
Securities Dealers;
file
all
Registration Statements and any amendments and supplements thereto
electronically through the SEC's Xxxxx filing system; and
take
all
other steps reasonably necessary to effect the registration of the. Registrable
Securities contemplated hereby.
(g) Conditions
Precedent to Company’s Obligations Pursuant to this Agreement.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Agreement that each of the Designated Holders whose
Registrable Securities are to be registered pursuant to this Agreement shall
furnish such Designated Holder’s written agreement to be bound by the terms and
conditions of this Agreement prior to performance by the Company of its
obligations under this Agreement. By executing and delivering this Agreement,
each Designated Holder represents and warrants that the information concerning,
and representations and warranties by, such Designated Holder, including
information concerning the securities of the Company held, beneficially or
of
record, by such Designated Holder, furnished to the Company pursuant to the
Purchase Agreement or otherwise, are true and correct as if the same were
represented and warranted on the date any Registration Statement required
pursuant to this Agreement is filed with the SEC or the date of filing with
the
SEC of any amendment thereto, and each Designated Holder covenants to
immediately notify the Company in writing of any change in any such information,
representation or warranty and to refrain from offering or disposing of any
securities pursuant to any Registration Statement until the Company has
reflected such change in such Registration Statement. By executing and
delivering this Agreement, each Designated Holder further agrees to furnish
any
additional information as the Company may reasonably request in connection
with
any action to be taken by the Company pursuant to this Agreement, and to pay
such Designated Holder’s expenses that are not required to be paid by the
Company pursuant to this Agreement.
10
(h) Fees
and Expenses.
All
expenses incident to the Company’s performance of or compliance with this
Agreement including, without limitation, all registration and filing fees
payable by the Company, fees and expenses of compliance by the Company with
securities or blue sky laws, printing expenses of the Company, messenger and
delivery expenses of the Company, and fees and disbursements of counsel for
the
Company and all independent certified public accountants of the Company, and
other Persons retained by the Company will be borne by the Company, and the
Company will pay its internal expenses (including, without limitation, all
salaries and expenses of the Company’s employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of
any
liability insurance of the Company and the expenses and fees for listing or
approval for trading of the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed
or on
any automated quotation system of a national securities association on which
similar securities of the Company are quoted. In connection with any
Registration Statement filed hereunder, the Company will pay the reasonable
fees
and expenses of a single counsel retained by the Designated Holders of a
majority (by number of shares) of the Registrable Securities requested to be
included in such Registration Statement. The Company shall have no obligation
to
pay any underwriting discounts or commissions attributable to the sale of
Registrable Securities or any of the expenses incurred by any Designated Holder
that are not payable by the Company, such costs to be borne by such Designated
Holder or Holders, including, without limitation, underwriting fees, discounts
and expenses, if any, applicable to any Designated Holder’s Registrable
Securities; fees and disbursements of counsel or other professionals that any
Designated Holder may choose to retain in connection with a Registration
Statement filed pursuant to this Agreement (except as otherwise provided
herein); selling commissions or stock transfer taxes applicable to the
Registrable Securities registered on behalf of any Designated Holder; and any
other expenses incurred by or on behalf of such Designated Holder in connection
with the offer and sale of such Designated Holder’s Registrable Securities other
than expenses which the Company is expressly obligated to pay pursuant to this
Agreement.
11
(i) Indemnification.
The
Company agrees to indemnify and hold harmless, to the fullest extent permitted
by law, each Designated Holder and its general or limited partners, officers,
directors, members, managers, employees, advisors, representatives, agents
and
Affiliates (collectively, the "Representatives")
from
and against any loss, claim, damage, liability, attorney’s fees, cost or expense
and costs and expenses of investigating and defending any such claim
(collectively, the "Losses"),
joint
or several, and any action in respect thereof to which such Designated Holder
or
its Representatives may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereto) arise out of or are based upon (i) any breach
by
the Company of any of its representations, warranties or covenants contained
in
this Agreement, (ii) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, prospectus or preliminary or summary
prospectus or any amendment or supplement thereto, or (iii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and the Company
shall reimburse each such Designated Holder and its Representatives for any
legal or any other expenses incurred by them in connection with investigating
or
defending or preparing to defend against any such Loss, action or proceeding;
provided, however, that the Company shall not be liable to any such Designated
Holder or other indemnitee 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 (x) an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
any such prospectus or preliminary or summary prospectus or any amendment or
supplement thereto in reliance upon, and in conformity with, written information
prepared and furnished to the Company by any Designated Holder or its
Representatives expressly for use therein and, with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to the Registration Statement, to the extent
that a prospectus relating to the Registrable Securities was required to be
delivered by such Designated Holder under the Securities Act in connection
with
such purchase, there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Registrable Securities to such person,
a copy of the final prospectus that corrects such untrue statement or alleged
untrue statement or omission or alleged omission if the Company had previously
furnished copies thereof to such Designated Holder or (y) use of a Registration
Statement or the related prospectus during a period when a stop order has been
issued in respect of such Registration Statement or any proceedings for that
purpose have been initiated or use of a prospectus when use of such prospectus
has been suspended pursuant to Sections
2.5(b),
2.6(e)
or
2.6(i);
provided that in each case such Holder received prior written notice of such
stop order, initiation of proceedings or suspension from the Company. In no
event, however, shall the Company be liable for indirect, incidental or
consequential or special damages of any kind. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning
of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Designated Holders.
In
connection with the filing of the Registration Statement by the Company pursuant
to this Agreement, the Designated Holders will furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
such Registration Statement and the related prospectus and, to the fullest
extent permitted by law, each such Designated Holder will indemnify and hold
harmless the Company and its Representatives from and against any Losses,
severally but not jointly, and any action in respect thereof to which the
Company and its Representatives may become subject under the Securities Act
or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon (i) the
purchase or sale of Registrable Securities during a suspension as set forth
in
Sections
2.5(b),
2.6(e)
or
2.6(i)
in each
case after receipt of written notice of such suspension, (ii) any untrue or
alleged untrue statement of a material fact contained in the Registration
Statement, prospectus or preliminary or summary prospectus or any amendment
or
supplement thereto, or (iii) any omission or alleged omission of a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, but, with respect to clauses (ii) and (iii) above, only to the
extent that such untrue statement or omission is made in such Registration
Statement, any such prospectus or preliminary or summary prospectus or any
amendment or supplement thereto in reliance upon, and in conformity with,
written information prepared and furnished to the Company by such Designated
Holder expressly for use therein or by failure of such Designated Holder to
deliver a copy of the Registration Statement or prospectus or any amendments
or
supplements thereto, and such Designated Holder will reimburse the Company
and
each Representative for any legal or any other expenses incurred by them in
connection with investigating or defending or preparing to defend against any
such Loss, action or proceeding; provided, however, that such Designated Holder
shall not be liable in any such case to the extent that prior to the filing
of
any such Registration Statement or prospectus or amendment or supplement
thereto, such Designated Holder has furnished in writing to the Company
information expressly for use in such Registration Statement or prospectus
or
any amendment or supplement thereto that corrected or made not misleading
information previously furnished to the Company. The obligation of each
Designated Holder to indemnify the Company and its Representatives shall be
limited to the net proceeds received by such Designated Holder from the sale
of
Registrable Securities under such Registration Statement. In no event, however,
shall any Designated Holder be liable for indirect, incidental or consequential
or special damages of any kind.
12
Promptly
after receipt by any Person in respect of which indemnity may be sought pursuant
to Section
2.9(a)
or
2.9(b)
(an
"Indemnified
Party")
of
notice of any claim or the commencement of any action, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Person against
whom such indemnity may be sought (an "Indemnifying
Party"),
promptly notify the Indemnifying Party in writing of the claim or the
commencement of such action; provided that the failure to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
that it may have to an Indemnified Party under Section
2.9(a)
or
2.9(b)
except
to the extent of any actual prejudice resulting therefrom. If any such claim
or
action shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from
the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable
to
the Indemnified Party for any legal or other expenses subsequently incurred
by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party
and
its Representatives who may be subject to liability arising out of any claim
in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for
the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or
(ii) in the written opinion of counsel to such Indemnified Party, representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however,
that
the Indemnifying Party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in
the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties. No Indemnifying Party shall, without the prior written consent of
the
Indemnified Party, effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been
a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such claim or proceeding other than
the
payment of monetary damages by the Indemnifying Party on behalf of the
Indemnified Party. Whether or not the defense of any claim or action is assumed
by the Indemnifying Party, such Indemnifying Party will not be subject to any
liability for any settlement made without its consent, which consent will not
be
unreasonably withheld.
13
If
the
indemnification provided for in this Section
2.9
is
unavailable to the Indemnified Parties in respect of any Losses referred to
herein, then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses in such proportion as is appropriate to reflect
the
relative benefits received by the Company on the one hand and the Designated
Holders on the other from the offering of the Registrable Securities, or if
such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company on the one hand and the Designated Holders on the other
in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative fault of
the
Company on the one hand and of each Designated Holder on the other shall be
determined by reference to, among other things, whether any action taken,
including any 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 such party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The
Company and the Designated Holders agree that it would not be just and equitable
if contribution pursuant to this Section
2.9(d)
were
determined by pro rata allocation or by any other method of allocation that
does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as
a
result of the Losses referred to in the immediately preceding paragraph shall
be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection
with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section
2.9,
no
Designated Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of such
Designated Holder were offered to the public exceeds the amount of any Losses
which such Designated Holder has otherwise paid by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. Each Designated Holder’s
obligations to contribute pursuant to this Section
2.9
is
several in the proportion that the proceeds of the offering received by such
Designated Holder bears to the total proceeds of the offering received by all
the Designated Holders. The indemnification provided by this Section
2.9
shall be
a continuing right to indemnification with respect to sales of Registrable
Securities and shall survive the registration and sale of any Registrable
Securities by any Designated Holder and the expiration or termination of this
Agreement. The indemnity and contribution agreements contained herein are in
addition to any liability that any Indemnifying Party might have to any
Indemnified Party.
14
(j) Participation
in Registrations.
No
Person
may participate in any registration hereunder that is underwritten unless such
Person (i) agrees to sell such Person’s securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and this
Agreement.
Each
Person that is participating in any registration under this Agreement agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section
2.6(e)
or
2.6(i)
above,
such Person will forthwith discontinue the disposition of its Registrable
Securities pursuant to the Registration Statement and all use of the
Registration Statement or any prospectus or related document until such Person’s
receipt of the copies of a supplemented or amended prospectus as contemplated
by
such Section
2.6(e)
and, if
so directed by the Company, will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Designated
Holder’s possession of such documents at the time of receipt of such notice.
Furthermore, each Designated Holder agrees that if such Designated Holder uses
a
prospectus in connection with the offering and sale of any of the Registrable
Securities, the Designated Holder will use only the latest version of such
prospectus provided by Company.
Transfers
of Certain Rights
(k) Transfer.
The
rights granted to the Purchasers under this Agreement are non-transferable
except in connection with a transfer of Registrable Securities in accordance
with the terms and conditions of the Purchase Agreement, provided that any
such
transfer shall be subject to the provisions of Sections
3.2
and
3.3;
provided further that nothing contained herein shall be deemed to permit an
assignment, transfer or disposition of the Registrable Securities in violation
of applicable law.
(l) Transferees.
Any
permitted transferee to whom rights under this Agreement are transferred shall,
as a condition to such transfer, deliver to the Company a written instrument
by
which such transferee agrees to be bound by the obligations imposed upon the
Purchasers under this Agreement to the same extent as if such transferee were
a
Purchaser hereunder.
15
(m) Subsequent
Transferees.
A
transferee to whom rights are transferred pursuant to this Section
3
may not
again transfer such rights to any other person or entity, other than as provided
in Sections
3.1
or
3.2
above.
Miscellaneous
(a) Recapitalizations,
Exchanges, etc.
The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (i) the Registrable Securities, (ii) any and all shares of
Common Stock into which the Registrable Securities are converted, exchanged
or
substituted in any recapitalization or other capital reorganization by the
Company, and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets
or
otherwise) that may be issued in respect of, in conversion of, in exchange
for
or in substitution of, the Registrable Securities and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by merger, consolidation, sale
of
assets or otherwise) to enter into a new registration rights agreement with
the
Designated Holders on terms substantially the same as this Agreement as a
condition of any such transaction.
(b) No
Inconsistent Agreements.
The
Company has not and shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Purchasers in
this Agreement. The Parties acknowledge and agree that the Company may grant
registration rights hereafter, which shall be pari passu with the registration
rights of the Purchasers, and shall not be deemed to conflict with this
covenant.
(c) Amendments
and Waivers.
The
provisions of this Agreement may be amended and the Company may take action
herein prohibited, or omit to perform any act herein required to be performed
by
it, if, but only if, the Company has obtained the written consent of holders
of
at least a majority of the Registrable Securities then in
existence.
(d) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be held to be prohibited by or invalid wider applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(e) Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
(f) Notices.
All
notices, requests and other communications to any party hereunder shall be
in
writing (including facsimile or similar writing) and shall be deemed given
or
made as of the date delivered, if delivered personally or by facsimile (provided
that delivery by facsimile shall be followed by delivery of an additional copy
personally, by mail or overnight courier), one day after being delivered by
overnight courier or four business days after being mailed by registered or
certified mail (postage prepaid for the most expeditious form of delivery,
return receipt requested), to the parties at the following addresses (or to
such
other address or facsimile number as a party may have specified by notice given
to the other party pursuant to this provision):
16
If
to the
Company, to:
Northern
Oil & Gas, Inc.
000
Xxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
Attention:
Xxxx Xxxxxxxxxx, Chief Financial Officer
Telephone:
(952) 476 - 9800
Facsimile:
(952) 476 - 9801
With
copy
to:
Best
& Xxxxxxxx LLP
000
Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx,
XX 00000-0000
Attention:
Xxxx X. Xxxxxxx, Esq.
Telephone:
(612) 341 - 9723
Facsimile:
(612) 339 - 5897
If
to a
Purchaser, to:
The
address or facsimile number of each Purchaser set forth
on
the
signature page of this Agreement.
(g) Governing
Law; Forum.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, notwithstanding any conflict of law provision to the
contrary. The parties consent to the exclusive jurisdiction and venue of the
courts of any county in the State of New York and the United States Federal
District Courts of New York in any judicial proceeding brought to enforce this
Agreement. The parties agree that any forum other than the State of New York
is
an inconvenient forum and that a lawsuit brought by one party against another
party in a court of any jurisdiction other than the State of New York should
be
forthwith dismissed or transferred to a court located in the State of New
York.
(h) Captions.
The
captions, headings and arrangements used in this Agreement are for convenience
only and do not in any way limit or amplify the terms and provisions
hereof.
(i) No
Prejudice.
The
terms of this Agreement shall not be construed in favor of or against any party
on account of its participation in the preparation hereof.
(j) Words
in Singular and Plural Form.
Words
used in the singular form in this Agreement shall be deemed to import the
plural, and vice versa, as the sense may require.
(k) Remedy
for Breach.
The
Company hereby acknowledges that in the event of any breach or threatened breach
by the Company of any of the provisions of this Agreement, the Designated
Holders would have no adequate remedy at law and could suffer substantial and
irreparable damage. Accordingly, the Company hereby agrees that, in such event,
the Designated Holders shall be entitled, and notwithstanding any election
by
any Designated Holder to claim damages, to obtain a temporary and/or permanent
injunction to restrain any such breach or threatened breach or to obtain
specific performance of any such provisions, all without prejudice to any and
all other remedies that any Designated Holders may have at law or in
equity.
17
(l) Successors
and Assigns, Third Party Beneficiaries.
This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of the parties hereto, each assignee of the Designated Holders
permitted pursuant to Article
3
and
their respective permitted successors and assigns and executors, administrators
and heirs.
(m) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them.
(n) Attorneys’
Fees.
In the
event of any action or suit based upon or arising out of any actual or alleged
breach by any party of any representation, warranty, covenant or agreement
in
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees and expenses of such action or suit from the other party in
addition to any other relief ordered by any court.
(o) Termination
of Rights.
Upon
the expiration of the Registration Period all rights of Designated Holders
under
Section
2.1
of this
Agreement will terminate. All rights under this Agreement will terminate when
the Designated Holders no longer hold any Registrable Securities.
(p) Force
Majeure.
Notwithstanding anything to the contrary in this Agreement, no party to this
Agreement will be liable for any failure or delay in its performance under
this
Agreement due to any cause beyond its reasonable control, including natural
disasters, war, embargo, riot, sabotage, labor shortage, act of terrorism,
or
governmental act, provided that the delayed party (a) gives the other parties
prompt notice of such cause, and (b) uses reasonable commercial efforts to
correct promptly such failure or delay in performance.
[Signature
Page Follows]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date and year first written
above.
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COMPANY:
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NORTHERN
OIL & GAS, INC.
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By:
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Name:
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Title:
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[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT FOR PURCHASERS]
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PURCHASER:
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By:
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Name:
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Title:
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ADDRESS:
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Telephone:
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Facsimile:
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20
