REGISTRATION RIGHTS AGREEMENT
Exhibit 10.32
This registration rights agreement (this “Agreement”) is made and entered into as of
January 5, 2006, by and between Trident Resources Corp., a Delaware corporation (the
“Company”), and the undersigned Holders (as defined herein).
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” means, as to any specified Person, (i) any Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or is under common
control with, the specified Person, (ii) any executive officer, director, trustee or general
partner of the specified Person and (iii) any legal entity for which the specified Person acts as
an executive officer, director, trustee or general partner. For purposes of this definition,
“control” (including the correlative meanings of the terms “controlled by” and “under common
control with”), as used with respect to any Person, means the possession, directly, or indirectly
through one or more intermediaries, of the power to direct or cause the direction of the management
and policies of such Person, whether by contract, through the ownership of voting securities,
partnership interests or other equity interests or otherwise.
“Agreement” is defined in the introductory paragraph above.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not
a day on which banking institutions in New York, New York are authorized or obligated by applicable
law, regulation or executive order to close.
“Closing Date” means January 5, 2006.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means shares of common stock, par value $0.001 per share, of the
Company.
“Company” is defined in the introductory paragraph of this Agreement, and includes any
successor thereto.
“Controlling Person” is defined in Section 5(a).
“Effective Date” means the effective date of the registration statement the Company
files under the Securities Act of 1933, as amended, in respect of the initial public offering by
the Company of shares of its common stock.
“End of Suspension Notice” is defined in Section 4(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission pursuant thereto.
“Existing Registration Rights Agreement” means the Second Amended and Restated
Registration Rights Agreement dated as of March 29, 2005 among the Company and the other
signatories thereto.
“Holder” means each record owner of any Registrable Shares from time to time.
“Holder Representative” means TD Securities Inc. and Credit Suisse First Boston;
“Indemnified Party” is defined in Section 5(c).
“Indemnifying Party” is defined in Section 5(c).
“Liabilities” is defined in Section 5(a).
“Lock-Up Agreement” means the agreement contained in Section 2.12 of the Existing
Registration Rights Agreement.
“Mandatory Shelf Registration Statement” is defined in Section 2(a).
“NASD” means the National Association of Securities Dealers, Inc.
“No Objections Letter” is defined in Section 3(s).
“Offering” means the private placement offering by the Company of up to 2,280,000
shares of its common stock made pursuant to the offering memorandum, dated December 16, 2005.
“Person” means an individual, limited liability company, partnership, corporation,
trust, unincorporated organization, government or agency or political subdivision thereof, or any
other legal entity.
“Prospectus” means the prospectus included in the Mandatory Shelf Registration
Statement, including any preliminary prospectus, and all other amendments and supplements to any
such prospectus, including post-effective amendments, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such prospectus.
“Purchaser Indemnitee” is defined in Section 5(a).
“Registrable Shares” means Registrable Securities as defined in the Existing
Registration Rights Agreement, upon original issuance thereof, and at all times subsequent thereto,
including upon the transfer thereof by the original holder or any subsequent holder and any shares
or other securities issued in respect of such Registrable
Shares by reason of or in connection with any stock dividend, stock distribution, stock split,
purchase in any rights offering or in connection with any exchange for or replacement of such
Registrable Shares or any combination of shares, recapitalization,
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merger or consolidation, or any
other equity securities issued pursuant to any other pro rata distribution with
respect to the Common Stock, and including any shares of Common Stock issued pursuant to any
Liquidity Entitlement under any applicable subscription agreement (as such term is defined in such
subscription agreement), until the earliest to occur of:
| (i) | the date on which it has been sold pursuant to a registration statement or sold pursuant to Rule 144; | ||
| (ii) | the date on which it is saleable without registration under the Securities Act, pursuant to Rule 144(k); | ||
| (iii) | with respect to any Holder, the date on which such Holder could sell all of such Holder’s shares of Common Stock pursuant to Rule 144 in a 90 day period; | ||
| (iv) | the date on which it is sold to the Company or its subsidiaries; or | ||
| (v) | the date which is the second anniversary of the closing of the Offering. |
“Registration Default” is defined in Section 2(d).
“Registration Expenses” means any and all expenses incident to the performance of or
compliance with this Agreement, including: (i) all Commission, securities exchange, NASD
registration, listing, inclusion and filing fees, (ii) all fees and expenses incurred in connection
with compliance with international, federal or state securities or blue sky laws (including any
registration, listing and filing fees and reasonable fees and disbursements of counsel in
connection with blue sky qualification of any of the Registrable Shares and the preparation of a
blue sky memorandum and compliance with the rules of the NASD), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, duplicating, printing, delivering and
distributing the Mandatory Shelf Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements, certificates and any
other documents relating to the performance under and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing or inclusion of any of the Registrable Shares
on the New York Stock Exchange, The NASDAQ Stock Market or the Toronto Stock Exchange pursuant to
Section 3(n), (v) the fees and disbursements of counsel for the Company and of the independent
public accountants of the Company (including the expenses of any special audit and “cold comfort”
letters required by or incident to such performance), and (vi) any fees and disbursements
customarily paid in issues and sales of securities (including the fees and expenses of any experts
retained by the Company in connection with the Mandatory
Shelf Registration Statement), provided, however, that Registration Expenses
shall exclude all brokers’ or underwriters’ discounts and commissions and transfer taxes, if
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any,
relating to the sale or disposition of Registrable Shares by a Holder and the fees and
disbursements of any counsel to the Holders.
“Rule 144”, “Rule 158”, “Rule 415” or “Rule 424”,
respectively, means such specified rule promulgated by the Commission 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 Commission as a replacement thereto having substantially the same effect as such
rule.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
“Selling Holders’ Counsel” means one counsel, reasonably acceptable to the Company,
for the Holders, selected by the Holders holding a majority of the Registrable Shares.
“Shelf Request Notice” is defined in Section 2(a).
“Suspension Event” is defined in Section 4(b).
“Suspension Notice” is defined in Section 4(b).
“Underwritten Offering” means a sale of securities of the Company to an underwriter or
underwriters for reoffering to the public.
2. Registration Rights.
(a) Mandatory Shelf Registration. As set forth in Section 3, upon the written request
of any Holder delivered to the Company on or prior to the one hundred twentieth (120th )
day following the Effective Date ( the “Shelf Request Notice”), the Company agrees to file
with the Commission within one hundred fifty (150) days following the Effective Date, a shelf
registration statement on Form S-1 or such other form under the Securities Act then available to
the Company providing for the resale of Registrable Shares pursuant to Rule 415 from time to time
by the Holders (including the Prospectus, amendments and supplements to such registration statement
or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference, if any, in such registration
statement, the “Mandatory Shelf Registration Statement”).
| (i) | Effectiveness and Scope. The Company shall use its commercially reasonable efforts to cause the Mandatory Shelf Registration Statement to be declared effective by the Commission as soon as reasonably practicable following the date that is one hundred eighty (180) days following the Effective Date, and to remain effective until the date on which all Common Stock in respect thereof cease to be Registrable Shares, as herein defined. Notwithstanding the foregoing, the Company shall not be required to cause the Mandatory Shelf Registration Statement to be declared effective by the |
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| Commission for so long as all Holders are subject to the Lock-Up Agreement. The Mandatory Shelf Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available (including an Underwritten Offering), by the Holders of any and all Registrable Shares. |
(b) Expenses. The Company shall pay all Registration Expenses in connection with the
registration of sales of the Registrable Shares pursuant to this Agreement. Each Holder
participating in a registration pursuant to this Section 2 shall bear such Holder’s proportionate
share (based on the total number of Registrable Shares sold in such registration) of all discounts
and commissions payable to underwriters or brokers and all transfer taxes in connection with a
registration of Registrable Shares pursuant to this Agreement and any other expense of the Holders
not specifically allocated to the Company pursuant to this Agreement relating to the sale or
disposition of such Holder’s Registrable Shares pursuant to the Mandatory Shelf Registration
Statement.
3. Registration Procedures. In connection with the obligations of the Company with
respect to the Mandatory Shelf Registration Statement pursuant to this Agreement, the Company
shall:
(a) notify the Holder Representative and the Selling Holders’ Counsel, in writing, at least
ten (10) Business Days prior to filing the Mandatory Shelf Registration Statement, of its intention
to file the Mandatory Shelf Registration Statement with the Commission and, at least five (5)
Business Days prior to filing, provide a copy of the Mandatory Shelf Registration Statement to the
Holder Representative and the Selling Holders’ Counsel; prepare and file with the Commission, as
specified in this Agreement, the Mandatory Shelf Registration Statement, which Mandatory Shelf
Registration Statement shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the Commission to be filed
therewith and shall be reasonably acceptable to the Holder Representative and the Selling Holders’
Counsel; notify the Holder Representative and the Selling Holders’ Counsel at least five (5)
Business Days prior to filing of any amendment or supplement to the Mandatory Shelf Registration
Statement and, at least three (3) Business Days prior to filing, provide a copy of such amendment
or supplement to the Holder Representative and the Selling Holders’ Counsel for review and comment;
promptly following receipt from the Commission, provide to the Holder Representative and the
Selling Holders’ Counsel copies of any comments made by the staff of the Commission relating to the
Mandatory Shelf Registration Statement and the Company’s responses thereto for review and comment;
and use its commercially reasonable efforts to
cause the Mandatory Shelf Registration Statement to become effective as soon as practicable
after filing and to remain effective as set forth in Section 2(a)(i);
(b) subject to Section 3(i), (i) prepare and file with the Commission such amendments and
post-effective amendments to the Mandatory Shelf Registration Statement as may be necessary to keep
the Mandatory Shelf Registration Statement effective for the period described in Section 2(a)(i),
(ii) cause each Prospectus
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contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be
adopted under the Securities Act, (iii) amend or supplement the Mandatory Shelf Registration
Statement to include the Company’s quarterly and annual financial information and other material
developments (until the Company is eligible to incorporate such information by reference into the
Mandatory Shelf Registration Statement), during which time sales of the Registrable Shares under
the Mandatory Shelf Registration Statement will be suspended until such amendment or supplement is
effective, and (iv) comply in all material respects with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Mandatory Shelf Registration Statement
during the applicable period in accordance with the intended method or methods of distribution by
the selling Holders thereof;
(c) furnish to the Holders, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other documents as such
Holder may reasonably request, in order to facilitate the public sale or other disposition of the
Registrable Shares (and the Company hereby consents to the use of such Prospectus, including each
preliminary Prospectus, by the Holders, if any, in connection with the offering and sale of the
Registrable Shares covered by any such Prospectus);
(d) use its commercially reasonable efforts to register or qualify, or obtain exemption from
registration or qualification for, all Registrable Shares by the time the Mandatory Shelf
Registration Statement is declared effective by the Commission under all applicable state
securities or “blue sky” laws of such domestic jurisdictions as any Holder covered by the Mandatory
Shelf Registration Statement shall request in writing, keep each such registration or qualification
or exemption effective during the period the Mandatory Shelf Registration Statement is required to
be kept effective pursuant to Section 2(a)(i) and do any and all other acts and things that may be
reasonably necessary or advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares owned by such Holder; provided, however,
that the Company shall not be required to (i) qualify generally to do business in any jurisdiction
or to register as a broker or dealer in such jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction, or
(iii) submit to the general service of process in any such jurisdiction;
(e) use its commercially reasonable efforts to cause all Registrable Shares covered by the
Mandatory Shelf Registration Statement to be registered and approved by such other domestic
governmental agencies or authorities, if
any, as may be necessary to enable the Holders thereof to consummate the disposition of such
Registrable Shares;
(f) notify each Holder with Registrable Shares covered by the Mandatory Shelf Registration
Statement promptly and, if requested by any such Holder, confirm such advice in writing (i) when
the Mandatory Shelf Registration Statement has become effective and when any post-effective
amendments and supplements thereto
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become effective, (ii) of the issuance by the Commission or any
state securities authority of any stop order suspending the effectiveness of the Mandatory Shelf
Registration Statement or the initiation of any proceedings for that purpose, (iii) of any request
by the Commission or any other federal or state governmental authority for amendments or
supplements to the Mandatory Shelf Registration Statement or related Prospectus or for additional
information, (iv) of the happening of any event during the period the Mandatory Shelf Registration
Statement is effective as a result of which the Mandatory Shelf Registration Statement or the
related Prospectus or any document incorporated by reference therein contains any 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 (which information shall be accompanied by an
instruction to suspend the use of the Mandatory Shelf Registration Statement and the Prospectus
until the requisite changes have been made) and (v) at the request of any such Holder, promptly to
furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such
Prospectus prepared in accordance with Section 3(i);
(g) during the period of time referred to in Section 2(a)(i), use its commercially reasonable
efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order enjoining or
suspending the use or effectiveness of the Mandatory Shelf Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, as promptly as practicable;
(h) upon request, furnish to each requesting Holder with Registrable Shares covered by the
Mandatory Shelf Registration Statement, without charge, at least one conformed copy of the
Mandatory Shelf Registration Statement and any post-effective amendment or supplement thereto
(without documents incorporated therein by reference or exhibits thereto, unless requested);
(i) except as provided in Section 4, upon the occurrence of any event contemplated by Section
3(f)(iv), use its commercially reasonable efforts to promptly prepare a supplement or
post-effective amendment to the Mandatory Shelf Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Shares, such Prospectus will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and, upon request, promptly furnish to each requesting Holder
covered by the Mandatory Shelf Registration Statement a reasonable number of copies of each such
supplement or post-effective amendment;
(j) use its commercially reasonable efforts (including seeking to cure in the Company’s
listing or inclusion application any deficiencies cited by the exchange or market) to list or
include all Registrable Shares on the New York Stock Exchange, The Nasdaq Stock Market or the
Toronto Stock Exchange and thereafter maintain the listing or inclusion on such exchange or market;
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(k) provide a CUSIP number for all Registrable Shares by a date not later than the date shares
of the Common Stock are listed or included on an exchange or market pursuant to Section 3(n);
(l) (i) otherwise use its commercially reasonable efforts to comply in all material respects
with all applicable rules and regulations of the Commission and (ii) delay filing the Mandatory
Shelf Registration Statement or Prospectus or amendment or supplement to the Mandatory Shelf
Registration Statement or Prospectus to which the Holder Representative or the Selling Holders’
Counsel shall have reasonably objected on the grounds that the Mandatory Shelf Registration
Statement or Prospectus or amendment or supplement does not comply in all material respects with
the requirements of the Securities Act, the Holder Representative and the Selling Holders’ Counsel
having been furnished with a copy thereof at least five (5) Business Days before the filing
thereof, provided that the Company may file the Mandatory Shelf Registration Statement or
Prospectus or amendment or supplement following such time as the Company shall have made a good
faith effort to resolve any such issue with the Holder Representative or the Selling Holders’
Counsel and shall have advised the Holder Representative or the Selling Holders’ Counsel in writing
of its reasonable belief that such filing complies in all material respects with the requirements
of the Securities Act;
(m) appoint a registrar and transfer agent for all Registrable Shares covered by the Mandatory
Shelf Registration Statement by a date not later than the date shares of the Common Stock are
listed or included on an exchange or market pursuant to Section 3(n);
(n) in connection with any sale or transfer of the Registrable Shares (whether or not pursuant
to the Mandatory Shelf Registration Statement) that will result in the securities being delivered
no longer constituting Registrable Shares, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing the Registrable Shares to be sold, which
certificates shall not bear any transfer restrictive legends (other than as required by the
Company’s charter or by-laws), and to enable such Registrable Shares to be in such denominations
and registered in such names as the Holders may request, which request shall be made at least two
(2) Business Days prior to any sale of the Registrable Shares; and
The Company may require the Holders to furnish to the Company such information regarding the
proposed distribution by such Holder as the Company may from time to time reasonably request in
writing or as shall be required to effect the registration of the Registrable Shares, and no Holder
shall be entitled to be named as a selling stockholder in the Mandatory Shelf Registration
Statement and no Holder shall be entitled to use the Prospectus forming a part thereof if such
Holder does not timely
provide such information in writing to the Company. Each Holder further agrees to furnish
promptly to the Company in writing all information required from time to time to make the
information previously furnished by such Holder not misleading.
Each Holder agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 3(f)(ii), 3(f)(iii) or 3(f)(iv),
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such Holder will
immediately discontinue disposition of Registrable Shares pursuant to the Mandatory Shelf
Registration Statement until (i) any such stop order is vacated or (ii) if an event described in
Section 3(f)(iii) or 3(f)(iv) occurs, such Holder’s receipt of the copies of the supplemented or
amended Prospectus. If so directed by the Company, such Holder will deliver to the Company (at the
reasonable expense of the Company) all copies in its possession, other than permanent file copies
then in such Holder’s possession, of the Prospectus covering such Registrable Shares current at the
time of receipt of such notice.
4. Suspension Period.
(a) Subject to the provisions of this Section 4, following the effectiveness of the Mandatory
Shelf Registration Statement (and the filings with any international, federal or state securities
commissions), the Company may direct the Holders, in accordance with Section 4(b), to suspend sales
of the Registrable Shares pursuant to the Mandatory Shelf Registration Statement for such times as
the Company reasonably may determine is necessary and advisable (but in no event for more than an
aggregate of ninety (90) days in any consecutive twelve (12)-month period commencing on the date
the Lock-Up Agreement is terminated with respect to all of the Holders or more than sixty (60)
days in any consecutive ninety (90)-day period, except as a result of a review of any
post-effective amendment by the Commission prior to declaring any post-effective amendment to the
Mandatory Shelf Registration Statement effective), provided that the Company has used its
commercially reasonable efforts to cause such post-effective amendment to be declared effective),
if any of the following events shall occur: (i) the representative of the underwriters of an
Underwritten Offering of primary shares by the Company has advised the Company that the sale of
Registrable Shares pursuant to the Mandatory Shelf Registration Statement would have a material
adverse effect on a public offering by the Company; (ii) an officer of the Company shall have
determined in good faith that (1) the offer or sale of any Registrable Shares would materially
impede, delay or interfere with any proposed financing, offer or sale of securities, acquisition,
merger, tender offer, business combination, corporate reorganization, consolidation or other
significant transaction involving the Company, (2) upon the advice of counsel, the sale of
Registrable Shares pursuant to the Mandatory Shelf Registration Statement would require disclosure
of non-public material information not otherwise required to be disclosed under applicable law, and
(3) either (x) the Company has a bona fide business purpose for preserving the confidentiality of
such transaction, (y) disclosure would have a material adverse effect on the Company or the
Company’s ability to consummate such transaction, or (z) the proposed transaction renders the
Company unable to comply with Commission requirements, in each case
under circumstances that would make it impractical or inadvisable to cause the Mandatory Shelf
Registration Statement (or such filings) to become effective or to promptly amend or supplement the
Mandatory Shelf Registration Statement on a post-effective basis, as applicable; or (iii) an
officer of the Company shall have determined in good faith, upon the advice of counsel, that the
Company is required by law, rule or regulation to supplement the Mandatory Shelf Registration
Statement or file a post-effective amendment to the Mandatory Shelf Registration Statement in order
to incorporate information into the Mandatory Shelf Registration Statement for the purpose
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of (1)
including in the Mandatory Shelf Registration Statement any prospectus required under Section
10(a)(3) of the Securities Act; (2) reflecting in the prospectus included in the Mandatory Shelf
Registration Statement any facts or events arising after the effective date of the Mandatory Shelf
Registration Statement (or of the most-recent post-effective amendment) that, individually or in
the aggregate, represents a material change in the information set forth therein; or (3) including
in the prospectus included in the Mandatory Shelf Registration Statement any material information
with respect to the plan of distribution not disclosed in the Mandatory Shelf Registration
Statement or any material change to such information. Upon the occurrence of any such suspension,
the Company shall use its commercially reasonable efforts to cause the Mandatory Shelf Registration
Statement to become effective or to promptly amend or supplement the Mandatory Shelf Registration
Statement on a post-effective basis or to take such action as is necessary to make resumed use of
the Mandatory Shelf Registration Statement compatible with the Company’s best interests, as
applicable, so as to permit the Holders to resume sales of the Registrable Shares as soon as
possible.
(b) In the case of an event that causes the Company to suspend the use of the Mandatory Shelf
Registration Statement (a “Suspension Event”), the Company shall give written notice (a
“Suspension Notice”) to the Holders to suspend sales of the Registrable Shares and such
notice shall state generally the basis for the notice and that such suspension shall continue only
for so long as the Suspension Event or its effect is continuing and the Company is using
commercially reasonable efforts to terminate suspension of the use of the Mandatory Shelf
Registration Statement as promptly as possible. No Holder shall effect any sales of the
Registrable Shares pursuant to the Mandatory Shelf Registration Statement (or such filings) at any
time after it has received a Suspension Notice from the Company and prior to receipt of an End of
Suspension Notice (as defined below). If so directed by the Company, each Holder will deliver to
the Company (at the expense of the Company) all copies other than permanent file copies then in
such Holder’s possession of the Prospectus covering the Registrable Shares at the time of receipt
of the Suspension Notice. The Holders may recommence effecting sales of the Registrable Shares
pursuant to the Mandatory Shelf Registration Statement (or such filings) following further notice
to such effect (an “End of Suspension Notice”) from the Company, which End of Suspension
Notice shall be given by the Company to the Holders in the manner described above promptly
following the conclusion of any Suspension Event and its effect.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless (i) each Holder, (ii) each Person, if
any, who controls (within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act) any of the foregoing (a “Controlling Person”), and (iii) the respective
officers, directors, partners, members, employees, representatives and agents of any such Person or
any Controlling Person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as a “Purchaser Indemnitee”) from and against any and all losses, claims,
damages, judgments, actions, reasonable out-of-pocket expenses, and other liabilities, including,
as incurred, reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending
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any claim or action, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, including the reasonable fees and expenses of outside counsel to any
Purchaser Indemnitee, joint or several (the “Liabilities”), directly or indirectly related
to, based upon, arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Mandatory Shelf Registration Statement or Prospectus
(as amended or supplemented if the Company shall have furnished to such Purchaser Indemnitee any
amendments or supplements thereto), or any preliminary Prospectus or any other document prepared by
the Company used to sell the Registrable Shares, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
(in the case of a Prospectus, in light of the circumstances under which they were made), not
misleading, except insofar as such Liabilities arise out of or are based upon (i) any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Purchaser Indemnitee furnished to the Company in
writing by such Purchaser Indemnitee expressly for use therein, (ii) any untrue statement contained
in or omission from a preliminary Prospectus if a copy of the Prospectus (as then amended or
supplemented, if the Company shall have furnished to or on behalf of the Holder participating in
the distribution relating to the relevant Registration Statement any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to the Person asserting any such
Liabilities who purchased Common Stock, if such Prospectus (or Prospectus as amended or
supplemented) is required by law to be sent or given at or prior to the written confirmation of the
sale of such Common Stock to such Person and the untrue statement contained in or omission from
such preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented), or (iii) any sales by any Holder after the delivery by the Company to such Holder of
a Suspension Notice and before the delivery by the Company of an End of Suspension Notice. The
Company shall notify the Holders promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation), or litigation of which it shall have become
aware in connection with the matters addressed by this Agreement which involves the Company or a
Purchaser Indemnitee. The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of any Purchaser Indemnitee.
(b) In connection with the Mandatory Shelf Registration Statement in which a Holder is
participating, such Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, each Person who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act, and the respective officers, directors, partners,
members, representatives, employees and agents of such Person or Controlling Person to the same
extent as the foregoing indemnity from the Company to each Purchaser Indemnitee, but only with
reference to (i) untrue statements or omissions or alleged untrue statements or omissions made in
reliance upon and in conformity with information relating to such Holder furnished to the Company
in writing by such Holder expressly for use in the Mandatory Shelf Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary Prospectus and (ii) any sales
by any Holder after the delivery by the Company to such Holder of a Suspension Notice and before
the delivery by the Company of an End of Suspension Notice. The liability of any Holder pursuant
to clause (i) of the
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immediately preceding sentence shall in no event exceed the net proceeds
received by such Holder from sales of Registrable Shares giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnity may
be sought pursuant to Section 5(a) or 6(b), such Person (the “Indemnified Party”), shall
promptly notify the Person against whom such indemnity may be sought (the “Indemnifying
Party”), in writing (to the extent legally advisable) of the commencement thereof (but the
failure to so notify an Indemnifying Party shall not relieve it from any Liability which it may
have under this Section 5, except to the extent the Indemnifying Party is materially prejudiced by
the failure to give notice), and the Indemnifying Party, upon request of the Indemnified Party,
shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may reasonably designate in such proceeding and shall
assume the defense of such proceeding and pay the fees and expenses actually incurred by such
counsel related to such proceeding. Notwithstanding the foregoing, in any such proceeding, any
Indemnified Party may retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party, unless (i) the Indemnifying Party and the Indemnified Party
shall have mutually agreed in writing to the contrary, (ii) the Indemnifying Party failed within a
reasonable time after notice of commencement of the action to assume the defense and employ counsel
reasonably satisfactory to the Indemnified Party, or (iii) the named parties to any such action
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
or any affiliate of the Indemnifying Party, and such Indemnified Party shall have been reasonably
advised by counsel that, either (x) there may be one or more legal defenses available to it which
are different from or additional to those available to the Indemnifying Party or such affiliate of
the Indemnifying Party or (y) a conflict may exist between such Indemnified Party and the
Indemnifying Party or such affiliate of the Indemnifying Party, in which event the Indemnifying
Party may not assume or direct the defense of such action on behalf of such Indemnified Party, it
being understood, however, that the Indemnifying Party shall not, in connection with any one such
action or separate but substantially similar or related actions arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such Indemnified
Parties, which firm shall be designated in writing by those Indemnified Parties who sold a majority
of the Registrable Shares sold by all such Indemnified Parties and any such separate firm for the
Company, the directors, the officers and such control Persons of the Company as shall be designated
in writing by the Company. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be unreasonably withheld
or delayed, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify any Indemnified Party from and against any Liability by
reason of such settlement or judgment to the extent provided in this Section 5 without reference to
this sentence. No Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement
12
includes an unconditional release of such
Indemnified Party from all Liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in Section 5(a) or 5(b) is for any reason held to be
unavailable to an Indemnified Party in respect of any Liabilities referred to therein (other than
by reason of the exceptions provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Party under such sections, in lieu of indemnifying
such Indemnified Party thereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Liabilities (i) in such proportion as is appropriate to
reflect the relative benefits of the Indemnified Party on the one hand and the Indemnifying Parties
on the other in connection with the statements or omissions that resulted in such Liabilities, or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Indemnifying Parties and the Indemnified Party, as well as
any other relevant equitable considerations. The relative fault of the Company, on the one hand,
and any Purchaser Indemnitees, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or by such
Purchaser Indemnitees and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation (even if such Indemnified Parties
were treated as one entity for such purpose), or by any other method of allocation that does not
take account of the equitable considerations referred to in Section 5(d). The amount paid or
payable by an Indemnified Party as a result of any Liabilities referred to in Section 5(d) shall be
deemed to include, subject to the limitations set forth above, any reasonable legal or other
expenses actually incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a
Purchaser Indemnitee be required to contribute any amount in excess of the amount by which
proceeds received by such Purchaser Indemnitee from sales of Registrable Shares exceeds the
amount of any damages that such Purchaser Indemnitee has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. For purposes of this
Section 5, each Person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) a Holder shall have the same rights to contribution as such
Holder, as the case may be, and each Person, if any, who controls (within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act) the Company, and each officer, director, partner,
member, employee, representative, agent or manager of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties, notify each party or parties
from
13
whom contribution may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any obligation it or they
may have under this Section 5 or otherwise, except to the extent that any party is materially
prejudiced by the failure to give notice. 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.
(f) The indemnity and contribution agreements contained in this Section 5 will be in addition
to any Liability which the indemnifying parties may otherwise have to the indemnified parties
referred to above. Each Purchaser Indemnitee’s obligations to contribute pursuant to this Section
5 are not joint but are several in the proportion that the number of Registrable Shares sold by
such Purchaser Indemnitee under the Mandatory Shelf Registration Statement bears to the number of
Registrable Shares sold by all Purchaser Indemnitees under the Mandatory Shelf Registration
Statement.
6. Termination of the Company’s Obligations. The Company shall have no further
obligations pursuant to this Agreement at such time as no Registrable Shares are outstanding after
their original issuance, provided, however, that the Company’s obligations under
Sections 5 and 7 (and any related definitions) shall remain in full force and effect following such
time.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of any of its obligations under
this Agreement, each Holder, in addition to being entitled to exercise all rights provided herein,
or granted by law, including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. Subject to Section 5, the Company agrees that monetary damages would
not be adequate compensation for any loss incurred
by reason of a breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given,
without the written consent of the Company and Holders beneficially owning a majority of the
Registrable Shares; provided, however, that for purposes of this Agreement,
Registrable Shares owned, directly or indirectly, by an entity that is an Affiliate of the Company
due to the Company’s owning an interest in such entity shall not be deemed to be outstanding.
Notwithstanding the foregoing, a waiver or consent to or departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of a Holder whose securities are being
sold pursuant to the Mandatory Shelf Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may be given by such
Holder; provided that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately preceding sentence.
14
(c) Notices. All notices and other communications, provided for or permitted
hereunder shall be made in writing and delivered by facsimile or other electronic means (with
receipt confirmed), overnight courier or registered or certified mail, return receipt requested,
addressed as follows:
| (i) | if to a Holder, at the most current address given by the Holder to the Company in writing; and | ||
| (ii) | if to the Company, at the offices of the Company at Xxxxx 0000, 000 – 0xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, X0X 0X0, Attention: Secretary and Treasurer. |
(d) Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the parties hereto and
shall inure to the benefit of each Holder. The Company agrees that the Holders shall be third
party beneficiaries to the agreements made hereunder by the Company, and each Holder shall have the
right to enforce such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder; provided, however, that such Holder
fulfills all responsibilities and obligations hereunder as if it is a signatory hereto.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK OR THE SUPREME COURT OF THE STATE OF NEW YORK OR SITTING IN NEW YORK
COUNTY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
15
(g) Severability. If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
hereto that they would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(h) Entire Agreement. This Agreement, together with the Existing Registration Rights
Agreement, is intended by the parties hereto as a final expression of their agreement and is
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and, for the avoidance of
doubt, the Company’s obligations under this Agreement shall exist notwithstanding the last sentence
of Section 2.5(a)(i) in the Existing Registration Rights
Agreement and (ii) this Agreement is a valid agreement among the parties hereto
notwithstanding Section 4.8 in the Existing Registration Rights Agreement.
(i) Registrable Shares Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Shares is required hereunder,
Registrable Shares held by the Company or entities that are Affiliates of the Company due to the
Company’s owning an interest in such entities shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(j) Survival. The indemnification and contribution obligations under Section 5 shall
survive the termination of the Company’s obligations under Section 2.
(k) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the provisions of this Agreement. All references made in
this Agreement to “Section” refer to such Section of this Agreement, unless expressly stated
otherwise.
(l) Adjustment for Stock Splits, etc. Wherever in this Agreement there is a reference
to a specific number of shares with respect to any securities, then upon the occurrence of any
subdivision, combination, or stock dividend of such shares, the specific number of shares with
respect to any securities so referenced in this Agreement shall automatically be proportionally
adjusted to reflect the effect on the outstanding shares of such class or series of stock by such
subdivision, combination, or stock dividend.
[Remainder of this Page Intentionally Left Blank]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| TRIDENT RESOURCES CORP. |
||||
| By: | /s/ Xxxx X. X'Xxxxxxxx | |||
| Name: | Xxxx X. X'Xxxxxxxx | |||
| Title: | Secretary & Treasurer | |||
[This is a counterparty page to the Registration Rights Agreement.]
|
AURORA ENERGY PARTNERS, L.P., by its General Partner, White Hat Ventures, LLC |
||||||
| Per: |
/s/ Xxx Xxxxx Title: Manager |
|||||
| TRIDENT EXPLORATION LIMITED | TRIDENT EXPLORATION (2003) | |||||
| PARTNERSHIP, by its General Partner, | LIMITED PARTNERSHIP I, by its | |||||
| 981443 ALBERTA LTD. | General Partner, 981443 ALBERTA LTD. | |||||
| Per: | /s/ Xxxx X. X’Xxxxxxxx | Per: | /s/ Xxxx X. X’Xxxxxxxx | |||
| Name: Xxxx X. X’Xxxxxxxx | Name: Xxxx X. X’Xxxxxxxx | |||||
| Title: Secretary & Treasurer | Title: Secretary & Treasurer | |||||
| TRIDENT EXPLORATION (2005) | TRIDENT EXPLORATION (2005) | |||||
| LIMITED PARTNERSHIP I, by its | LIMITED PARTNERSHIP II, by its | |||||
| General Partner, 981443 ALBERTA LTD. | General Partner, 981443 ALBERTA LTD. | |||||
| By: | /s/ Xxxx X. X’Xxxxxxxx | Per: | /s/ Xxxx X. X’Xxxxxxxx | |||
| Name: Xxxx X. X’Xxxxxxxx | Name: Xxxx X. X’Xxxxxxxx | |||||
| Title: Secretary & Treasurer | Title: Secretary & Treasurer | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
THE XXXXXXX X. XXXXXX FAMILY TRUST, an Alaska resident trust |
THE XXXXXX FAMILY IRREVOCABLE GST TRUST |
|||||
| By: | /s/ Xxxxxxx X. XxXxxx | By: | ||||
| Name: Xxxxxxx X. XxXxxx | Name: Xxxx X. Xxxxxxx | |||||
| Title: Investment Trustee | Title: Trustee | |||||
| By: | Wyoming Bank & Trust, Trustee | |||||
| Name: | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
THE XXXXXXX X. XXXXXX FAMILY TRUST, an Alaska resident trust |
THE XXXXXX FAMILY IRREVOCABLE GST TRUST |
|||||
| By: | By: | /s/ Xxxx X. Xxxxxxx | ||||
| Name: Xxxxxxx X. XxXxxx | Name: Xxxx X. Xxxxxxx | |||||
| Title: Investment Trustee | Title: Trustee | |||||
| By: | Wyoming Bank & Trust, Trustee | |||||
| /s/ Xxxxxxx X. Xxxx | ||||||
| Name: Xxxxxxx X. Xxxx | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
BTR GLOBAL ARBITRAGE TRADING LIMITED |
BTR GLOBAL OPPORTUNITY TRADING LIMITED |
|||||
| By: | /s/ Xxxx Ostoiski | By: | /s/ Xxxx Ostoiski | |||
| Name: Xxxx Ostoiski | Name: Xxxx Ostoiski | |||||
| Title: Director | Title: Director | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| PERRY PARTNERS X.X. |
XXXXX PARTNERS INTERNATIONAL, INC. |
|||||
|
By:
|
/s/ Xxxxxxx X. Xxxx | By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: Xxxxxxx X. Xxxx | Name: Xxxxxxx X. Xxxx | |||||
| Title: General Counsel | Title: General Counsel | |||||
|
By:
|
Perry Corp. Managing Partner for | By: | Perry Corp. Investment Advisor for | |||
| Perry Partners X.X. | Xxxxx Partners Int’l Inc. | |||||
| AUDA CLASSIC P.L.C | ||||||
|
By:
|
/s/ B. Xxxxx Xxxx | |||||
| Name: B. Xxxxx Xxxx | ||||||
| Title: Director | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
NATURAL RESOURCES PORTFOLIO OF THE PRUDENTIAL SERIES FUND, INC. |
XXXXXXXX UTILITY FUND OF THE PRUDENTIAL SECTOR FUNDS INC. |
|||||
| By: |
Xxxxxxxx Associates LLC, as sub- advisor to Natural Resources Portfolio of The Prudential Series Fund, Inc. |
By: |
Xxxxxxxx Associates LLC, as sub- advisor to Xxxxxxxx Utility Fund of the Prudential Sector Funds, Inc. |
|||
| Per: | /s/ Xxxxx X. Xxxxxx | Per: | /s/ Uborg Edemeka | |||
| Name: Xxxxx X. Xxxxxx | Name: Uborg Edemeka | |||||
| Title: Executive Vice President | Title: Vice President | |||||
| XXXXXXXX VALUE FUND |
VALUE PORTFOLIO OF THE PRUDENTIAL SERIES FUND, INC. |
|||||
| By: |
Xxxxxxxx Associates LLC, as sub- advisor to Xxxxxxxx Value Fund |
By: |
Xxxxxxxx Associates LLC, as sub- advisor to Value Portfolio of the Prudential Series Fund, Inc. |
|||
| Per: | /s/ Xxxxx X. Xxxxxx | Per: | /s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | Name: Xxxxx X. Xxxxxx | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
|
XXXXXXXX NATURAL RESOURCES FUND, INC. |
SAMSUNG LIFE INVESTMENT (AMERICA), LTD. |
|||||
|
By:
|
Xxxxxxxx Associates LLC, as sub- advisor to Xxxxxxxx Natural Resources Fund, Inc. |
By: |
Xxxxxxxx Associates LLC, as sub- advisor to Samsung Life Investment (America), Inc. |
|||
|
Per:
|
/s/ Xxxxx X. Xxxxxx | Per: | /s/ Xxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxx | Name: Xxxxx X. Xxxxxx | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
ALEXANDRA GLOBAL MASTER FUND, LTD. |
||||||
| By: |
Alexandra Investment Management, LLC (as investment advisor) |
|||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Name: Xxxx Xxxxxx | ||||||
| Title: Chief Operating Officer | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
TRIDENT ENERGY OPPORTUNITY, L.P., by its general partner, TRIDENT ENERGY OPPORTUNITY GP, INC. |
||||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxx | ||||||
| Title: President | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
PRUDENTIAL CAPITAL PARTNERS, L.P. |
PRUDENTIAL CAPITAL PARTNERS, MANAGEMENT FUND, L.P. |
|||||
|
By:
|
Prudential Capital Group, L.P. (as its General Partner) |
By: |
Prudential Investment Management, Inc. (as its General Partner) |
|||
|
By:
|
/s/ Xxxxx X. Xxxxxxx | By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: Xxxxx X. Xxxxxxx | Name: Xxxxx X. Xxxxxxx | |||||
| Title: Vice President | Title: Vice President | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
EDGESTONE CAPITAL MEZZANINE FUND II, L.P. |
||||||
| By: |
Edgestone Capital Mezzanine II Partners, Inc., as general partner for and on behalf of Edgestone Capital Mezzanine Fund II, L.P. |
|||||
| By: | /s/ | |||||
| Name: | ||||||
| Title: Vice President | ||||||
| By: |
Edgestone Capital Mezzanine Fund II Nominee, Inc., as nominee for and on behalf of Edgestone Capital Mezzanine Fund II, L.P. and its parallel investors |
|||||
| By: | /s/ | |||||
| Name: | ||||||
| Title: Vice President | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
D.E. SHAW LAMINAR PORTFOLIOS, LLC |
||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: Xxxxxx Xxxxxx | ||||||
| Title: Authorized Signatory | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
| CLERY SARL | ||||||
| Per: | /s/ | |||||
|
Name: Luxembourg Corporation Company S.A. |
||||||
| Title: Manager | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
BLACKSTONE MEZZANINE HOLDINGS X.X. |
XXXXXXXXXX MEZZANINE PARTNERS L.P. |
|||||
| By: |
Blackstone Mezzanine Associates, L.P., its General Partner |
By: |
Blackstone Mezzanine Associates, L.P., its General Partner |
|||
| By: |
Blackstone Mezzanine Management Associates L.L.C., its General Partner |
By: |
Blackstone Mezzanine Management Associates L.L.C., its General Partner |
|||
| Per: | /s/ | Per: | /s/ | |||
| Name: | Name: | |||||
| Title: Authorized Signer | Title: Authorized Signer | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
TD CAPITAL MEZZANINE PARTNERS (QLP) L.P., by its General Partner, TD CAPITAL MEZZANINE PARTNERS (QLP) GP LTD. |
THE TORONTO-DOMINION BANK | |||||
| Per: | /s/ Xxx Xxxxxx | Per: | /s/ Xxx Xxxxxx | |||
| Name: Xxx Xxxxxx | Name: Xxx Xxxxxx | |||||
| Title: Managing Director | Title: Managing Director | |||||
|
TORONTO DOMINION INVESTMENTS, INC. |
TD CAPITAL MEZZANINE PARTNERS (NON-QLP) L.P., by its General Partner, TD CAPITAL MEZZANINE PARTNERS GP LTD. |
|||||
| Per: | /s/ Xxxxxx X. Xxxxxxx | Per: | /s/ Xxx Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | Name: Xxx Xxxxxx | |||||
| Title: President | Title: Managing Director | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| 2079517 ONTARIO LIMITED | ||||||
| By: |
/s/ Xxx Xxxxxxxx Title: Director |
|||||
| By: |
/s/ Xxxx Xxxxxx Title: Director |
|||||
[This is a counterparty page to the Registration Rights
Agreement.]
| /s/ | /s/ Xxx Xxxxx | |||||
| Witness as to the signature of Xxx Xxxxx | XXX XXXXX | |||||
| Witness as to the signature of Xxxx Xxxx | XXXX XXXX | |||||
| Witness as to the signature of Xxxxxx X. Xxxxxxxx | XXXXXX X. XXXXXXXX | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| Witness as to the signature of Xxx Xxxxx | XXX XXXXX | |||||
| /s/ | /s/ Xxxx Xxxx | |||||
| Witness as to the signature of Xxxx Xxxx | XXXX XXXX | |||||
| Witness as to the signature of Xxxxxx X. Xxxxxxxx | XXXXXX X. XXXXXXXX | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| Witness as to the signature of Xxx Xxxxx | XXX XXXXX | |||||
| Witness as to the signature of Xxxx Xxxx | XXXX XXXX | |||||
| /s/ | /s/ Xxxxxx X. Xxxxxxxx | |||||
| Witness as to the signature of Xxxxxx X. Xxxxxxxx | XXXXXX X. XXXXXXXX | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
MAGNETAR CAPITAL MASTER FUND, LTD. |
||||||
| By: |
Magnetar Financial LLC, its Investment Manager |
|||||
| By: |
Title: General Counsel |
|||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
BLACKROCK, INC. on behalf of ALL-CAP ENERGY HEDGE FUND LLC |
BLACKROCK, INC. on behalf of EDISON SOURCES LTD. |
|||||
| By: | /s/ Xxx Xxxx | By: | /s/ Xxx Xxxx | |||
| Name: Xxx Xxxx | Name: Xxx Xxxx | |||||
| Title: Managing Director | Title: Managing Director | |||||
|
BLACKROCK, INC. on behalf of RAYTHEON MASTER PENSION TRUST #2 ALL CAP ENERGY ACCOUNT |
BLACKROCK, INC. on behalf of RAYTHEON COMBINED DB-DC MASTER TRUST ALL CAP ENERGY |
|||||
| By: | /s/ Xxx Xxxx | By: | /s/ Xxx Xxxx | |||
| Name: Xxx Xxxx | Name: Xxx Xxxx | |||||
| Title: Managing Director | Title: Managing Director | |||||
|
BLACKROCK, INC. on behalf of RAYTHEON MASTER PENSION TRUST ALL CAP ENERGY ACCOUNT |
BLACKROCK, INC. on behalf of RAYTHEON MASTER PENSION TRUST ENERGY HEDGE ACCOUNT |
|||||
| By: | /s/ Xxx Xxxx | By: | /s/ Xxx Xxxx | |||
| Name: Xxx Xxxx | Name: Xxx Xxxx | |||||
| Title: Managing Director | Title: Managing Director | |||||
|
BLACKROCK, INC. on behalf of RAYTHEON COMBINED DB/DC MASTER TRUST ENERGY HEDGE ACCOUNT |
BLACKROCK, INC. on behalf of SSR ENERGY AND NATURAL RESOURCES HEDGE FUND LLC |
|||||
| By: | /s/ Xxx Xxxx | By: | /s/ Xxx Xxxx | |||
| Name: Xxx Xxxx | Name: Xxx Xxxx | |||||
| Title: Managing Director | Title: Managing Director | |||||
|
BLACKROCK, INC. on behalf of UNIVERSITY OF TEXAS GENERAL ENDOWMENT FUND ALL CAP ENERGY PORTFOLIO |
BLACKROCK, INC. on behalf of UNIVERSITY OF TEXAS PERMANENT UNIVERSITY FUND ALL CAP ENERGY PORTFOLIO |
|||||
| By: | /s/ Xxx Xxxx | By: | /s/ Xxx Xxxx | |||
| Name: Xxx Xxxx | Name: Xxx Xxxx | |||||
| Title: Managing Director | Title: Managing Director | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| VIKING GLOBAL EQUITIES LP | VGE III PORTFOLIO LTD. | |||||
| By: | /s/ Xxxxx X. Xxxxx | By: | /s/ Xxxxx X. Xxxxx | |||
| Name: Xxxxx X. Xxxxx | Name: Xxxxx X. Xxxxx | |||||
| Title: Chief Financial Officer | Title: Chief Financial Officer | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| TREATY OAK MASTER FUND, LP | TREATY OAK IRONWOOD, LTD. | |||||
| By: | /s/ Xxxxx XxXxxx | By: | /s/ Xxxxx XxXxxx | |||
| Name: Xxxxx XxXxxx | Name: Xxxxx XxXxxx | |||||
| Title: CFO | Title: CFO | |||||
| TREATY OAK ACORN FUND, LP | ||||||
| By: | /s/ Xxxxx XxXxxx | |||||
| Name: Xxxxx XxXxxx | ||||||
| Title: CFO | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
| STRAGEGIC ENERGY FUND | ||||||
| By: | Xxxxx XxxXxxxx | |||||
| Name: Xxxxx XxxXxxxx | ||||||
| Title: V.P. Investments | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
| HOPLITE PARTNERS, L.P. | HOPLITE OFFSHORE FUND, LTD. | |||||
|
By:
|
/s/ Xxxx X. Lykonvetsis | By: | /s/ Xxxx X. Lykonvetsis | |||
| Name: Xxxx X. Lykonvetsis | Name: Xxxx X. Lykonvetsis | |||||
| Title: Managing Member | Title: Director | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
FRONTPOINT ENERGY HORIZONS FUND, L.P. |
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| By: | /s/ Xxxxxx X. Xxx | |||||
| By: |
FrontPoint Energy Horizons Fund GP, LLC, as general partners |
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| By: |
Xxxxxx X. Xxx Authorized Signatory |
|||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
DEEPHAVEN RELATIVE VALUE EQUITY TRADING, LTD. |
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| By: | /s/ Xxx Xxxxxxx | |||||
| Name: Xxx Xxxxxxx | ||||||
| Title: CFO | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
XXXXXXX NEW ERA INTERNATIONAL, X.X. |
XXXXXXX NEW ERA PARTNERS, L.P. | |||||
|
By:
|
Xxxxxxx Investment Company LLC, General Partner |
By: |
Xxxxxxx Investment Company LLC, General Partner |
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx III | By: | /s/ Xxxxxx X. Xxxxx III | |||
| Name: Xxxxxx X. Xxxxx III | Name: Xxxxxx X. Xxxxx III | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
|
XXXXXXX SMALL CAP INTERNATIONAL, X.X. |
XXXXXXX SMALL CAP PARTNERS, L.P. |
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|
By:
|
Xxxxxxx Investment Company LLC, General Partner |
By: |
Xxxxxxx Investment Company LLC, General Partner |
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|
By:
|
/s/ Xxxxxx X. Xxxxx III | By: | /s/ Xxxxxx X. Xxxxx III | |||
| Name: Xxxxxx X. Xxxxx III | Name: Xxxxxx X. Xxxxx III | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
|
XXXXXXX GLOBAL NATURAL RESOURCES PARTNERS, X.X. |
XXXXXXX QP INVESTMENT PARTNERS, L.P. |
|||||
|
By:
|
Xxxxxxx Investment Company LLC, General Partner |
By: |
Xxxxxxx Investment Company LLC, General Partner |
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx III | By: | /s/ Xxxxxx X. Xxxxx III | |||
| Name: Xxxxxx X. Xxxxx III | Name: Xxxxxx X. Xxxxx III | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
| XXXXXXX INTERNATIONAL, X.X. |
XXXXXXX INVESTMENT PARTNERS, L.P. |
|||||
|
By:
|
Xxxxxxx Investment Company LLC, General Partner |
By: |
Xxxxxxx Investment Company LLC, General Partner |
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx III | By: | /s/ Xxxxxx X. Xxxxx III | |||
| Name: Xxxxxx X. Xxxxx III | Name: Xxxxxx X. Xxxxx III | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
[This is a counterparty page to the Registration Rights
Agreement.]
| XXXXXXX OPPORTUNITY TRUST, X.X. | XXXXXXX GLOBAL PARTNERS, L.P. | |||||
|
By:
|
Xxxxxxx Investment Company LLC, General Partner |
By: |
Xxxxxxx Investment Company LLC, General Partner |
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx III | By: | /s/ Xxxxxx X. Xxxxx III | |||
| Name: Xxxxxx X. Xxxxx III | Name: Xxxxxx X. Xxxxx III | |||||
| Title: Executive Vice President | Title: Executive Vice President | |||||
|
XXXXXXX OPPORTUNITY INTERNATIONAL, L.P. |
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|
By:
|
Xxxxxxx Investment Company LLC, General Partner |
|||||
|
By:
|
/s/ Xxxxxx X. Xxxxx III | |||||
| Name: Xxxxxx X. Xxxxx III | ||||||
| Title: Executive Vice President | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
FIDUCIARY TRUST INTERNATIONAL COMPANY, custodian for XXXX X. XXXXX |
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| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name:Xxxxxx X. Xxxxx | ||||||
| Title: Assistant Vice President | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
ARBITER PARTNERS LP, by its general partner, BROKEN CLOCK MANAGEMENT LLC |
||||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Name: Xxxx X. Xxxxx | ||||||
| Title: Managing Director | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
AMBER MASTER FUND (CAYMAN) SPC, on behalf of SEGREGATED PORTFOLIO X and SECREGATED PORTFOLIO Y |
||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: Xxxxxxx Xxxxxxx | ||||||
| Title: Director | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
|
CHEYNE SPECIAL SITUATIONS INVESTMENTS S.a.r.l. |
||||||
| By: | /s/ X. Xxxxxx | |||||
| Name:X. Xxxxxx | ||||||
| Title: Director | ||||||
[This is a counterparty page to the Registration Rights
Agreement.]
