EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is entered into as of
February 25, 2005, between INTEROIL CORPORATION., a New Brunswick corporation
(the "COMPANY") and the Investors set forth on the signature pages hereto (each,
a "INVESTOR" and collectively, the "INVESTORS").
W I T N E S S E T H:
WHEREAS, pursuant to the Indirect Participation Interest Agreement,
between the Company and the investors signatory thereto (the "IPI AGREEMENT"),
the Company has agreed to sell and issue to the Investors, and the Investors
have agreed, severally and not jointly, to purchase from the Company, an
aggregate of up to 20% IPI Percentages (the "IPI PERCENTAGES"), subject to the
terms and conditions set forth therein; and
Whereas, the terms of the IPI Agreement provide that the IPI
Percentages will be convertible into common shares (the "UNDERLYING SHARES"), no
par value per share (the "COMMON SHARES") of the Company; and
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the IPI
Agreement and this Agreement, the Company and each Investor, severally and not
jointly, agree as follows:
1. Certain Definitions. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed thereto in the IPI Agreement.
As used in this Agreement, the following terms shall have the following
respective meanings:
"CLOSING" and "CLOSING DATE" shall mean the closing and closing date
with respect to the purchase of the IPI Percentages.
"COMMISSION" or "SEC" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"HOLDER" and "HOLDERS" shall include the Investor and any transferee or
transferees of Registrable Securities which have not ceased to be Registrable
Securities to whom the registration rights conferred by this Agreement have been
transferred in compliance with this Agreement and the IPI Agreement.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the rules and regulations applicable in the Province of Ontario
and in compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement by such authorities.
"REGISTRABLE SECURITIES" shall mean: (i) the Underlying Shares issued
or issuable to each Holder (a) upon conversion of all or any part of the IPI
Percentage, (b) upon any distribution with respect to, any exchange for or any
replacement of such IPI Percentage or (c) upon any conversion, exercise or
exchange of any securities issued in connection with any such distribution,
exchange or replacement; (ii) securities issued or issuable upon any stock
split, stock dividend, recapitalization, exchange or similar event with respect
to the IPI Percentage or the Underlying Shares; and (iii) any other security
issued as a dividend or other distribution with respect to, in exchange for or
in replacement of the securities referred to in the preceding clauses, except
that any such Underlying Shares or other securities shall cease to be
Registrable Securities when (x) they have been sold to the public or (y) they
may be sold by the Holder thereof under Rule 144(k).
"REGISTRATION EXPENSES" shall mean all expenses to be incurred by the
Company in connection with each Holder's registration rights under this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, and blue
sky fees and expenses, reasonable fees and disbursements of counsel to Holders
(using a single counsel selected by the Holders holding at least a two-thirds
interest of the Registrable Securities) for a review of the Registration
Statement and related documents (such amount not to exceed $10,000 in the
aggregate for each registration), and the expense of any special audits incident
to or required by any such registration (but excluding the compensation of
regular employees of the Company, which shall be paid in any event by the
Company).
"REGISTRATION STATEMENT" shall have the meaning set forth in Section
2(a) herein.
"REGULATION D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"RULE 144(k)" means Rule 144(k) under Securities Act, or any successor
rule.
"SECURITIES ACT" or "ACT" shall mean the Securities Act of 1933, as
amended.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and transfer taxes applicable to the sale of Registrable Securities
and all fees and disbursements of counsel for Holders not included within
"REGISTRATION EXPENSES."
2. Registration Requirements. The Company shall use its best
efforts to effect the registration of the resale of the Registrable Securities
(including, without limitation, the execution of an undertaking to file
post-effective amendments, appropriate qualification under applicable blue sky
or other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and under the rules and regulations
applicable in the Province of Ontario) as would permit or facilitate the resale
of all the Registrable Securities in the manner (including manner of sale) and
in all states, territories and possessions of the United States reasonably
requested by the Holder. Such best efforts by the Company shall include, without
limitation, the following:
(a) The Company shall, as expeditiously as possible after the
Closing Date:
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(i) But in any event within 90 days of the Closing, prepare
and file a registration statement with the Commission pursuant to
the rules and regulations applicable in the home jurisdiction of
the Company and Rule 467 and Rule 408 under the Securities Act on
Form F-10, F-1 or S-1 or any corresponding successor forms that
may be available under the Securities Act (or in the event that
the Company is ineligible to use such forms, such other
appropriate form as the Company is eligible to use under the
Securities Act) covering resales by the Holders as selling
stockholders (not underwriters) of the Registrable Securities and
no other securities (the "REGISTRATION STATEMENT"). Thereafter the
Company shall use its best efforts to cause such Registration
Statement and other filings to be declared effective as soon as
possible, and in any event prior to 120 days following the Closing
Date (the "EFFECTIVENESS DEADLINE"). Without limiting the
foregoing, the Company will promptly respond to all comments,
inquiries and requests of the Ontario Securities Commission and
the SEC, and shall file and obtain a receipt or notice of
clearance for the final Canadian Prospectus and shall cause the
Registration Statement to become effective at the earliest
possible date. The Company shall provide the Holders reasonable
opportunity to review any such Registration Statement or amendment
or supplement thereto prior to filing.
(ii) Prepare and file with the Ontario Securities
Commission and the SEC such amendments and supplements to such
Registration Statement and the prospectuses used in connection
with such Registration Statement as may be necessary to comply
with the provisions of the Act with respect to the disposition of
all securities covered by such Registration Statement and notify
the Holders of the filing and effectiveness of such Registration
Statement and any amendments or supplements.
(iii) Furnish to each Holder such numbers of copies of a
current prospectus conforming with the requirements of the Act,
copies of the Registration Statement, any amendment or supplement
thereto and any documents incorporated by reference therein and
such other documents as such Holder may reasonably require in
order to facilitate the disposition of Registrable Securities
owned by such Holder.
(iv) Register and qualify the securities covered by such
Registration Statement under the securities or "BLUE SKY" laws of
all domestic jurisdictions, to the extent required; provided that
the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(v) Notify each Holder immediately of the happening of any
event (but not the substance or details of any such events unless
specifically requested by a Holder) as a result of which the
prospectus (including any supplements thereto or thereof) included
in such Registration Statement, as then in effect, includes an
untrue statement of material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not
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misleading in light of the circumstances then existing, and use
its best efforts to promptly update and/or correct such
prospectus.
(vi) Notify each Holder immediately of the issuance by the
Ontario Securities Commission or the Commission or any state
securities commission or agency of any stop order (or equivalent
action) suspending the effectiveness of the Registration Statement
or the threat or initiation of any proceedings for that purpose.
The Company shall use its best efforts to prevent the issuance of
any stop order (or equivalent action) and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
time.
(vii) Permit counsel to the Holders to review the
Registration Statement and all amendments and supplements thereto
within a reasonable period of time (but not less than two full
trading days prior to each filing and will not request
acceleration (or its Canadian equivalent) of the Registration
Statement without prior notice to such counsel.
(viii) List the Registrable Securities covered by such
Registration Statement with all securities exchange(s) and/or
markets on which the Common Shares are then listed, including,
without limitation, the American Stock Exchange, and prepare and
file any required filings with the Toronto Stock Exchange.
(b) If a Registration Statement has not been declared effective
by the Effectiveness Deadline, then the Company shall pay each Holder (other
than in the case of a Registration Statement not declared effective, a Holder of
Registrable Securities that the Company could exclude from registration in
accordance with Section 9) a Monthly Delay Payment (as defined below) with
respect to each successive 30-day period (or portion thereof appropriately
prorated) thereafter that effectiveness of the Registration Statement is
delayed. A "MONTHLY DELAY PAYMENT" shall be a cash payment equal to one percent
(1.0%) of the purchase price paid by a Holder (or such Holder's predecessor)
under the IPI Agreement. Payment of the Monthly Delay Payments shall be due and
payable from the Company to such Holder on the end of the applicable 30-day
period or portion thereof. Notwithstanding the foregoing, there shall be
excluded from the calculation of the number of days that the Registration
Statement has not been declared effective the delays which are solely
attributable to delays in the Investor providing information required for the
Registration Statement.
(c) If the Holder(s) intend to distribute the Registrable
Securities by means of an underwriting, the Holder(s) shall so advise the
Company. Any such underwriting may only be administered by nationally or
regionally recognized investment bankers reasonably satisfactory to the Company.
(d) The Company shall enter into such customary agreements for
secondary offerings (including a customary underwriting agreement with the
underwriter or underwriters, if any) and take all such other reasonable actions
reasonably requested by the Holders in connection with any underwritten offering
or when the Ontario Securities Commission or the SEC has required that the
Holders be identified as underwriters in the
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Registration Statement in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection:
(i) make such representations and warranties to the Holders
and the underwriter or underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters in
secondary offerings;
(ii) cause to be delivered to the sellers of Registrable
Securities and the underwriter or underwriters, if any, opinions
of independent counsel to the Company, on and dated as of the
effective day (or in the case of an underwritten offering, dated
the date of delivery of any Registrable Securities sold pursuant
thereto) of the Registration Statement, and within ninety (90)
days following the end of each fiscal year thereafter, which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Holders and the underwriter(s), if
any, and their counsel and covering such matters that are
customarily given to underwriters in underwritten offerings,
addressed to the Holders and each underwriter, if any;
(iii) cause to be delivered, immediately prior to the
effectiveness of the Registration Statement (and, in the case of
an underwritten offering, at the time of delivery of any
Registrable Securities sold pursuant thereto), and at the
beginning of each fiscal year following a year during which the
Company's independent certified public accountants shall have
reviewed any of the Company's books or records, a "comfort" letter
from the Company's independent certified public accountants
addressed to each underwriter (including the Holders, if the
Ontario Securities Commission or the SEC has required them to be
identified as underwriters in the Registration Statement), if any,
to the extent requested by such underwriters, stating that such
accountants are independent public accountants within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily
covered by letters of the independent certified public accountants
delivered in connection with secondary offerings; such accountants
shall have undertaken in each such letter to update the same
during each such fiscal year in which such books or records are
being reviewed so that each such letter shall remain current,
correct and complete throughout such fiscal year; and each such
letter and update thereof, if any, shall be reasonably
satisfactory to such underwriters;
(iv) if an underwriting agreement is entered into, the same
shall include customary indemnification and contribution
provisions to and from the underwriters and procedures for
secondary underwritten offerings; and
(v) deliver such documents and certificates as may be
reasonably requested by the Holders of the Registrable Securities
being sold or the managing underwriter or underwriters, if any, to
evidence compliance with clause (i) above and with any customary
conditions contained in the underwriting agreement, if any.
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(e) The Company shall make available for inspection by the
Holders, representative(s) of all the Holders together, any underwriter
participating in any disposition pursuant to a Registration Statement, and any
attorney or accountant retained by any Holder or underwriter, all financial and
other records customary for purposes of the Holders' due diligence examination
of the Company and review of any Registration Statement, all publicly filed
documents filed subsequent to the Closing, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement, provided that such parties keep such information
confidential as customary. Notwithstanding the foregoing, the foregoing right
shall not extend to any Holder (i) who is not a financial investor or entity or
(ii) who, itself or through any affiliate, has any strategic business interest
that would reasonably be expected to be in conflict with any business of the
Company or its subsidiaries.
(f) The Company may suspend the use of any prospectus used in
connection with the Registration Statement only in the event, and for such
period of time as such a suspension is required by the rules and regulations of
the Commission. The Company will use reasonable best efforts to cause such
suspension to terminate at the earliest possible date.
(g) The Company shall file a Registration Statement with
respect to any newly authorized and/or reserved Registrable Securities
consisting of Underlying Shares described in clause (i) of the definition of
Registrable Securities within five (5) business days. If the Holders become
entitled, pursuant to an event described in clause (ii) and (iii) of the
definition of Registrable Securities, to receive any securities in respect of
Registrable Securities that were already included in a Registration Statement,
subsequent to the date such Registration Statement is declared effective, and
the Company is unable under the securities laws to add such securities to the
then effective Registration Statement, the Company shall promptly file, in
accordance with the procedures set forth herein, an additional Registration
Statement with respect to such newly Registrable Securities. The Company shall
use its best efforts to (i) cause any such additional Registration Statement,
when filed, to become effective under the Securities Act, and (ii) keep such
additional Registration Statement effective during the period described in
Section 5 below and cause such Registration Statement to become effective within
60 days of that date that the need to file the Registration Statement arose. All
of the registration rights and remedies under this Agreement shall apply to the
registration of the resale of such newly reserved shares and such new
Registrable Securities, including without limitation the provisions providing
for default payments contained herein.
(h) The Company shall prepare and file with the Ontario
Securities Commission and the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the prospectus used
in connection with such Registration Statement, which prospectus supplement is
to be filed pursuant to the rules and regulations applicable in the home
jurisdiction of the Company and the Securities Act, as may be necessary to keep
such Registration Statement effective at all times during the Registration
Period (as defined below), and, during such period, comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities of the Company covered by such Registration Statement. In the case of
amendments and supplements to a Registration Statement which are required to be
filed pursuant to this Agreement (including pursuant to this Section 2)
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by reason of the Company filing a periodic report (whether on an applicable form
of the Ontario Securities Commission or on Form 20-F, Form 40-F, or Form 6-K or
any analogous or successor form under the 1934 Act), the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or shall have filed such amendments or supplements with the Ontario
Securities Commission and the SEC on the same day on which the continuous
disclosure document or periodic report which created the requirement for the
Company to amend or supplement such Registration Statement is filed.
(i) Each Holder agrees by its acquisition of the Registrable
Securities that, upon receipt of a notice from the Company of the occurrence of
any event of the kind described in Sections 2(a)(v) or 2(a)(vi), such Holder
will forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement contemplated by
Section 2(h), or until it is advised in writing (the "ADVICE") by the Company
that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
(j) If requested by a Holder, the Company shall (i) as soon as
practicable incorporate in a prospectus supplement or post-effective amendment
such information as a Holder reasonably requests to be included therein relating
to the sale and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such offering;
(ii) as soon as practicable make all required filings of such prospectus
supplement or post-effective amendment after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment; and
(iii) as soon as practicable, supplement or make amendments to any Registration
Statement if reasonably requested by a Holder holding any Registrable
Securities.
3. Expenses of Registration. All Registration Expenses in
connection with any registration, qualification or compliance with registration
pursuant to this Agreement shall be borne by the Company, and all Selling
Expenses of a Holder shall be borne by such Holder.
4. Registration. The Company shall use its best efforts to remain
qualified for registration on Form F-10, ▇-▇, ▇-▇, or any comparable or
successor form or forms, or in the event that the Company is ineligible to use
such form, such appropriate form as the Company is eligible to use under the
Securities Act provided that the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a Registration
Statement covering the Registrable Securities has been declared effective by the
SEC.
5. Registration Period. In the case of the registration effected
by the Company pursuant to this Agreement, the Company shall keep such
registration effective until the earlier of (a) the date on which all the
Holders have completed the sales or distribution described in the Registration
Statement relating thereto or, (b) until all Registrable Securities may be sold
by the Holders under Rule 144(k) (provided that the Company's transfer agent has
accepted an instruction
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from the Company to such effect) (the "REGISTRATION PERIOD"). Subject to Section
8 below, this Agreement shall be terminated automatically without further action
by any party hereto upon the expiration of the Registration Period.
6. Indemnification.
(a) Company Indemnity. The Company will indemnify and hold
harmless each Holder, each of its officers, directors, agents, shareholders,
members and partners, and each person controlling each of the foregoing, within
the meaning of Section 15 of the Securities Act and the rules and regulations
thereunder with respect to which registration, qualification or compliance has
been effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls, within the meaning of Section 15 of the Securities Act and
the rules and regulations thereunder, any underwriter, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other document (including
any related registration statement, notification or the like) incident to any
such registration, qualification or compliance, or based on 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 in light of the
circumstances under which they were made, or any violation by the Company of the
Securities Act, any applicable Canadian securities laws or any state securities
law or, any rule or regulation thereunder applicable to the Company and relating
to action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each Holder, each
of its officers, directors, agents, shareholders, members and partners, and each
person controlling each of the foregoing, each such underwriter and each person
who controls any such underwriter, for any legal and any other expenses
reasonably incurred and as incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to a Holder to the extent that any
such claim, loss, damage, liability or expense arises out of or is based (i) on
any untrue statement or omission based upon written information furnished to the
Company by such Holder or the underwriter (if any) therefor and stated to be
specifically for use therein or (ii) the failure of such Holder to deliver at or
prior to the written confirmation of sale, the most recent prospectus, as
amended or supplemented. The indemnity agreement contained in this Section 6(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent will not be unreasonably withheld).
(b) Holder Indemnity. Each Holder will, severally and not
jointly, if Registrable Securities held by it are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, officers, agents
and partners, and each underwriter, if any, of the Company's securities covered
by such a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act and the rules
and regulations thereunder, each other Holder (if any), and each of their
officers, directors and partners, and each person controlling such other
Holder(s) against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state
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therein a material fact required to be stated therein or necessary to make the
statement therein not misleading in light of the circumstances under which they
were made, and will reimburse the Company and such other Holder(s) and their
directors, officers and partners, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use therein, and provided that the maximum
amount for which such Holder shall be liable under this indemnity shall not
exceed the net proceeds received by such Holder from the sale of the Registrable
Securities pursuant to the registration statement in question. The indemnity
agreement contained in this Section 6(b) shall not apply to amounts paid in
settlement of any such claims, losses, damages or liabilities if such settlement
is effected without the consent of such Holder (which consent shall not be
unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under
this Section 6 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim in any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld), and the Indemnified Party
may participate in such defense at its own expense, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 6 except to
the extent that the Indemnifying Party is materially and adversely affected by
such failure to provide notice. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
non-privileged information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
7. Contribution. If the indemnification provided for in Section 6
herein is unavailable to the Indemnified Parties in respect of any losses,
claims, damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such 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, claims, damages or
liabilities as between the Company on the one hand and any Holder on the other,
in such proportion as is appropriate to reflect the relative fault of the
Company and of such Holder in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of any Holder on the other shall be determined by reference to, among
other things, whether the untrue
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or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or by
such Holder.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 7 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 6(a) or 6(b) hereof had been
available under the circumstances.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Holders or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs 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, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of any Holder, the net proceeds received by such Holder from the sale of
Registrable Securities pursuant to the registration statement in question or
(ii) in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such Holder or
underwriter has otherwise been required to pay 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.
8. Survival. The indemnity and contribution agreements contained
in Sections 6 and 7 and the representations and warranties of the Company
referred to in Section 2(d)(i) shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement or the IPI Agreement
or any underwriting agreement, (ii) any investigation made by or on behalf of
any Indemnified Party or by or on behalf of the Company, and (iii) the
consummation of the sale or successive resales of the Registrable Securities.
9. Information by Holders. Each Holder shall promptly furnish to
the Company such information regarding such Holder and such documents or
agreements from Holder and the distribution and/or sale proposed by such Holder
as the Company may from time to time reasonably request in writing or that are
required by law or requested by the Ontario Securities Commission or the
Commission in connection with any registration, qualification or compliance
referred to in this Agreement, and the Company may exclude from such
registration the Registrable Securities of any Holder who unreasonably fails to
furnish such information or such documents or agreements from within a
reasonable time after receiving such request. The intended method or methods of
disposition and/or sale (Plan of Distribution) of such securities as so provided
by such Investor shall be included without alteration in the Registration
Statement covering the Registrable Securities and shall not be changed without
written consent of such Holder. Each Holder agrees that, other than ordinary
course brokerage arrangements, in the event it enters into any arrangement with
a broker dealer for the sale of any Registrable Securities through a block
trade, special offering,
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exchange distribution or secondary distribution or a purchase by a broker or
dealer, such Holder shall promptly deliver to the Company in writing all
applicable information required in order for the Company to be able to timely
file a supplement to the Prospectus pursuant to the applicable rules and
regulations of the Company's home jurisdiction or Rule 424(b) under the
Securities Act, as applicable, to the extent that such supplement is legally
required. Such information shall include a description of (i) the name of such
Holder and of the participating broker dealer(s), (ii) the number of Registrable
Securities involved, (iii) the price at which such Registrable Securities were
or are to be sold, and (iv) the commissions paid or to be paid or discounts or
concessions allowed or to be allowed to such broker dealer(s), where applicable.
10. Replacement Certificates. The certificate(s) representing the
Registrable Securities held by any Investor (or then Holder) may be exchanged by
such Investor (or such Holder) at any time and from time to time for
certificates with different denominations representing an equal aggregate number
of Registerable Securities, as reasonably requested by such Investor (or such
Holder) upon surrendering the same. No service charge will be made for such
registration or exchange. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of any
certificates representing a Registrable Security and, in the case of loss, theft
or destruction, of indemnity reasonably satisfactory to it, or upon surrender
and cancellation of such certificate if mutilated, the Company will make and
deliver a new certificate of like tenor and dated as of such cancellation at no
charge to the holder.
11. Transfer or Assignment. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The rights granted to the Investor by
the Company under this Agreement to cause the Company to register Registrable
Securities may be transferred or assigned (in whole or in part) to a permitted
transferee or assignee of IPI Percentages or Registrable Securities, and all
other rights granted to the Investor by the Company hereunder may be transferred
or assigned to any permitted transferee or assignee of any IPI Percentage or
Registrable Securities; provided in each case that the Company must be given
written notice by the Investor at the time of or within a reasonable time after
said transfer or assignment, stating the name and address of said transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned; and provided further that the
transferee or assignee of such rights agrees in writing to be bound by the
registration provisions of this Agreement.
12. Reports Under The 1934 Act.
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act or any other similar rule or regulation of
the SEC that may at any time permit the Holders to sell securities of the
Company to the public without registration ("RULE 144"), no later than the
Effectiveness Deadline the Company agrees to:
(a) cause there to be "current public information" available
for the Company as such term is used in Rule 144 ;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act so
long as the
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Company remains subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule 144; and
(c) furnish to each Holder so long as such Holder owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
to permit the Holders to sell such securities pursuant to Rule 144 without
registration.
13. Miscellaneous.
(a) Remedies. The Company and the Investor acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof, this being in addition to any other remedy to which
any of them may be entitled by law or equity.
(b) Jurisdiction. Each of the Company and the Investor (i)
hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court, the Texas courts and other courts of the United States sitting
in ▇▇▇▇▇▇ County, Texas for the purposes of any suit, action or proceeding
arising out of or relating to this Agreement and (ii) hereby waives, and agrees
not to assert in any such suit action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. The Company and the Investor consent to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this paragraph shall affect or
limit any right to serve process in any other manner permitted by law.
(c) Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and will be deemed to have
been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt,
when sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
business day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same. The
addresses for such communications shall be:
to the Company:
InterOil Corporation
▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
One Houston Center
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
If to a Investor, to its address and facsimile number set forth on Schedule I
hereto, with copies to such Investor's representatives as set forth on Schedule
I hereto, or to such other address and/or facsimile number and/or to the
attention of such other person as the recipient party has specified by written
notice given to each other party five days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a courier or overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from a
nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively.
Any party hereto may from time to time change its address for notices by giving
at least five days' written notice of such changed address to the other parties
hereto.
(d) Waivers. No waiver by any party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
(e) Execution in Counterpart. This Agreement may be executed
in two or more counterparts, all of which shall be considered one and the same
agreement, it being understood that all parties need not sign the same
counterpart.
(f) Signatures. Facsimile signatures shall be valid and
binding on each party submitting the same.
(g) Entire Agreement; Amendment. This Agreement, together with
the IPI Agreement and the agreements and documents contemplated hereby and
thereby, contains the entire understanding and agreement of the parties.
Provisions of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Holders who
then hold at least two-thirds of the Registrable Securities. Any amendment or
waiver effected in accordance with this Section 13(g) shall be binding upon each
Holder and the Company. No such amendment shall be effective to the extent that
it applies to less than all of
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the holders of the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of any
provision of any of this Agreement unless the same consideration also is offered
to all of the parties to this Agreement.
(h) Governing Law. This Agreement and the validity and
performance of the terms hereof shall be governed by and construed in accordance
with the laws of the State of Texas applicable to contracts executed and to be
performed entirely within such state.
(i) Jury Trial. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL
BY JURY.
(j) Titles. The titles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
(k) No Strict Construction. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be applied against
any party.
[Signature Page Follows]
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