EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is made and entered
into effective as of the Closing. At the Closing, the Company will issue shares
of Common Stock and Subscriber Warrants to the Subscribers upon the terms set
forth in the Subscription Agreement. As an inducement to the Subscribers to
enter into the Subscription Agreement, the Company agrees with each Subscriber,
and with D & D, Octagon, Wellington and ECS, as follows:
1. DEFINITIONS. As used in this Agreement (including the preamble
above), the following defined terms shall have the following meanings:
"AFFILIATE" of any specified person means any other person, which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in Los Angeles,
California are authorized or obligated by law or executive order to close.
"CLOSING" has the meaning set forth in the Subscription Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"COMMON STOCK" means the Company's common stock, par value $0.0001 per
share; and (ii) any other securities into which or for which any of the
securities described in the preceding clause (i) may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
"COMPANY" means Pacific Energy Resources Ltd., a Delaware corporation.
"D & D" means D & D Securities Company.
"D & D SHARES" means the shares of Common Stock comprising part of the
D&D Units and the shares issuable upon exercise of the common stock purchase
warrants comprising a part of the D&D Units.
"D&D UNITS" means the units of the Corporation issuable upon exercise
of the placement agent's compensation warrant to be issued to D&D at the
Closing, with each D&D Unit being comprised of one share of Common Stock and
one-half of one common stock purchase warrant.
"ECS" means Energy Capital Solutions, L.P.
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"ECS SHARES" means the shares of Common Stock comprising part of the
ECS Units and the shares issuable upon exercise of the common stock purchase
warrants comprising a part of the ECS Units.
"ECS UNITS" means the units of the Corporation issuable upon exercise
of the placement agent's compensation warrant to be issued to ECS at the
Closing, with each ECS Unit being comprised of one share of Common Stock and
one-half of one common stock purchase warrant.
"EFFECTIVENESS PERIOD" has the meaning assigned thereto in SECTION
2(A).
"ELECTING HOLDER" has the meaning assigned thereto in SECTION 3(A).
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"HOLDER" means, when used with respect to any Security, the record
holder of such Security.
"MAJORITY HOLDERS" has the meaning assigned thereto in SECTION 6(A).
"OCTAGON" means Octagon Capital Corporation.
"OCTAGON SHARES" means the shares of Common Stock comprising part of
the Octagon Units and the shares issuable upon exercise of the common stock
purchase warrants comprising a part of the Octagon Units.
"OCTAGON UNITS" means the units of the Corporation issuable upon
exercise of the placement agent's compensation warrant to be issued to Octagon
at the Closing, with each Octagon Unit being comprised of one share of Common
Stock and one-half of one common stock purchase warrant.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"PLANNED REGISTRATION STATEMENT" has the meaning assigned thereto in
SECTION 2(b).
"PROSPECTUS" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A or Rule 430B under the
Securities Act) included in the Registration Statement, as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"QUESTIONNAIRE" means a Selling Security Holder Questionnaire,
substantially in the form of EXHIBIT A attached hereto, relating to the
Registrable Securities.
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"REGISTRABLE SECURITIES" means the shares of Common Stock issued to
Subscribers at the Closing, the Subscriber Warrant Shares, the D & D Shares, the
Octagon Shares, the Wellington Shares, the ECS Shares and any securities issued
with respect to any of the foregoing as a stock dividend or in connection with a
stock split or recapitalization occurring prior to the filing of the
Registration Statement, or, if occurring following the filing of the
Registration Statement, as contemplated by Rule 416 of the Securities Act;
provided, however, that any such securities shall cease to be Registrable
Securities when they are no longer Restricted Securities; and provided further,
that all or any portion of the shares issuable upon exercise of the common stock
purchase warrants comprising a part of the D&D Units, Octagon Units, Wellington
Units and ECS Units shall not be deemed Registrable Securities if and to the
extent the staff of the Commission determine that such shares are not eligible
to be included in the Registration Statement.
"REGISTRATION" means a registration effected pursuant to SECTION 2.
"REGISTRATION STATEMENT" means a registration statement filed under the
Securities Act providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, Registrable Securities pursuant to Rule 415
under the Securities Act and/or any similar rule that may be adopted by the
Commission, filed by the Company pursuant to the provisions of SECTION 2,
including the Prospectus contained therein, any amendments and supplements to
such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
"RESTRICTED SECURITIES" means securities other than securities that (i)
have been registered pursuant to an effective registration statement under the
Securities Act and sold in a manner contemplated by the Registration Statement,
(ii) have been transferred in compliance with Rule 144 under the Securities Act
(or any successor provision thereto) or are transferable pursuant to paragraph
(k) of such Rule 144 (or any successor provision thereto), or (iii) have
otherwise been transferred and new securities not subject to transfer
restrictions under the Securities Act have been delivered by or on behalf of the
Company.
"RULES AND REGULATIONS" means the published rules and regulations of
the Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended.
"SUBSCRIBER WARRANT SHARES" means shares of Common Stock issued or
issuable under Subscriber Warrants issued by the Company to Subscribers at the
Closing.
"SUBSCRIBER WARRANTS" means warrants issued at the Closing by the
Company to the Subscribers pursuant to the Subscription Agreement.
"SUBSCRIBERS" means the Subscribers named on the signature pages of the
Subscription Agreement and this Agreement.
"SUBSCRIPTION AGREEMENT" means the Pacific Energy Resources Ltd.
Subscription Agreements by and among the Company and the Subscribers.
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"WELLINGTON" means Wellington West Capital Markets Inc.
"WELLINGTON SHARES" means the shares of Common Stock comprising part of
the Wellington Units and the shares issuable upon exercise of the common stock
purchase warrants comprising a part of the Wellington Units.
"WELLINGTON UNITS" means the units of the Corporation issuable upon
exercise of the placement agent's compensation warrant to be issued to
Wellington at the Closing, with each Wellington Unit being comprised of one
share of Common Stock and one-half of one common stock purchase warrant.
2. REGISTRATION.
(a) During the period beginning on the date of the Closing and
ending on the earliest to occur of (A) the date which is 24 months after the
Closing, (B) the date upon which all Registrable Securities registered under a
Registration Statement have been sold thereunder, and (C) the date upon which
all of the shares of Common Stock issued to a holder at the Closing and
Subscriber Warrant Shares cease to be Restricted Securities (such period being
referred to herein as the "EFFECTIVENESS PERIOD"), that holder shall have
incidental registration rights with respect to that holder's Registrable
Securities that are not then included on a Registration Statement. If the
Company shall determine to file with the Commission a registration statement
relating to an offering for its own account or the account of others under the
Securities Act of any of its equity securities (other than on Form S-4 or Form
S-8 or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans), the Company shall send to each such holder written notice of such
determination and, if within ten (10) days after the effective date of such
notice, the holder shall so request in writing, the Company shall include in
such registration statement all or any part of the Registrable Securities that
are not then included on a Registration Statement and that the holder requests
to be registered, except that if, in connection with any underwritten public
offering the managing underwriter(s) thereof shall impose a limitation on the
number of shares of Common Stock that may be included in the Registration
Statement because, in such underwriter(s)' judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distribution, then the
Company shall be obligated to include in the Registration Statement only such
limited portion of the Registrable Securities with respect to which the holder
has requested inclusion hereunder as the underwriter shall permit. Any exclusion
of Registrable Securities shall be made pro rata with holders of other
securities having the right to include such securities in the Registration
Statement other than holders of securities entitled to inclusion of their
securities in the Registration Statement by reason of demand registration
rights. If an offering in connection with which a holder elects to participate
in registration under this SECTION 2 is an underwritten offering, then the
holder shall, unless otherwise agreed by the Company, offer and sell such
Registrable Securities in an underwritten offering using the same underwriter or
underwriters and, subject to the provisions of this Agreement, on the same terms
and conditions as other shares of Common Stock included in such underwritten
offering.
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(b) This SECTION 2(b) shall serve as notice from the Company
to all other parties to this Agreement that the Company has determined to file
as soon as practicable after the Closing a registration statement that is
subject to the incidental registration rights provided in SECTION 2(a) ("PLANNED
REGISTRATION STATEMENT"). The parties hereby acknowledge and agree that the ten
(10)-day notice period provided in SECTION 2(a) has been satisfied and/or waived
with respect to the Planned Registration Statement.
3. REGISTRATION PROCEDURES. In connection with the Registration
Statement, the following provisions shall apply:
(a) Notwithstanding anything to the contrary contained in this
Agreement, the Subscription Agreement or otherwise, no holder shall be entitled
to be named as a selling security holder in the Registration Statement, and no
holder shall be entitled to use the Prospectus for resales of Registrable
Securities at any time, unless such holder has returned a completed and signed
Questionnaire to the Company by the deadline for response set forth therein. The
term "ELECTING HOLDER" means any holder of Registrable Securities that has
returned a completed and signed Questionnaire to the Company in accordance with
this SECTION 3(a). The information provided by each Electing Holder in the
signed Questionnaire shall be for use in the Registration Statement.
(b) The Company shall furnish to each Electing Holder prior to
the initial filing of the Registration Statement, a draft of the selling
security holder information contained in such Registration Statement, and shall
furnish to such holders prior to the filing of any amendment or supplement to
the Prospectus that contains material revisions to the selling security holder
information, a draft of such amendment or supplement and shall reflect in each
such document when so filed with the Commission such comments as such holders
reasonably may propose with regard to the selling security holder information;
provided, however, that the Company shall make the final decision as to the form
and content of each such document.
(c) Each Electing Holder shall promptly advise the Company in
writing if changes in the Registration Statement or the Prospectus are required
in order that disclosures made in the Registration Statement and Prospectus
based upon information previously provided by the Electing Holder for use in the
Registration Statement and the Prospectus do not contain an untrue statement of
a material fact and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they are made) not
misleading. The Company shall promptly advise each Electing Holder in writing
(which notice pursuant to clauses (iii) through (v) hereof shall be accompanied
by an instruction to suspend the use of the Prospectus until the requisite
changes have been made):
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become effective;
(ii) when the Commission notifies the Company whether
there will be a "review" of the Registration Statement and whenever the
Commission comments in writing on the selling security holder
information or Plan of Distribution in the Registration Statement (the
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Company shall provide true and complete copies thereof and all written
responses thereto to each of the Electing Holders that pertain to such
holders as a selling security holder or to the Plan of Distribution,
but not information which the Company believes would constitute
material and non-public information);
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the securities
included in the Registration Statement for sale in any jurisdiction or
the initiation of any proceeding for such purpose (including, but not
limited to, an order issued by any state securities commission or other
regulatory authority suspending the qualification, or exemption from
qualification, of the sale of the Registrable Securities under state
securities laws); and
(v) if changes in the Registration Statement or the
Prospectus are required in order that the Registration Statement and
Prospectus do not contain an untrue statement of a material fact and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading.
(d) The Company shall promptly furnish to each requesting
Electing Holder, without charge, at least one copy of the Registration Statement
and all post-effective amendments thereto, including financial statements and
schedules, and, if such holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Registration Statement.
(e) The Company shall, during the Effectiveness Period,
promptly deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Electing Holder may reasonably request; and the
Company consents (except during the continuance of any event described in
clauses (iii) through (v) of SECTION 3(c)) to the use of the Prospectus and any
amendment or supplement thereto by each of the Electing Holders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus and any amendment or supplement thereto during the Effectiveness
Period.
(f) Prior to any offering of Registrable Securities pursuant
to the Registration Statement, the Company shall, unless appropriate exemptions
are available, use its reasonable best efforts to (i) register or qualify the
registration or qualification of such Registrable Securities for offer and sale
under the securities or "blue sky" laws of such jurisdictions within the United
States as the Majority Holders may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for so long
during the Effectiveness Period as may be necessary to enable any Electing
Holder to complete its distribution of Registrable Securities pursuant to the
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Registration Statement, and (iii) take any and all other actions necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in no event shall the Company be obligated
to (A) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
SECTION 3(f), or (B) file any general consent to service of process in any
jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Registration Statement, which
certificates shall meet the requirements of any securities exchange on which the
Company's Common Stock is then listed and which certificates shall be in such
permitted denominations as Electing Holders may request in connection with the
sale of Registrable Securities pursuant to the Registration Statement.
(h) If the Company notifies the Electing Holders in accordance
with clauses (iii) through (v) of SECTION 3(c) to suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made, then
each Electing Holder shall suspend the use of the Prospectus until (i) such
Electing Holder has received from the Company copies of a supplemented or
amended Prospectus, or (ii) such Electing Holder is advised in writing by the
Company that the use of the Prospectus may be resumed and has received copies of
any additional or supplemental filings that are incorporated by reference in the
Prospectus. Notwithstanding the foregoing, the Company shall not be required to
amend or supplement the Registration Statement, any related Prospectus or any
document incorporated by reference therein for a period not to exceed 30
consecutive days (or 60 days in the aggregate in any calendar year) if there
occurs or exists any pending corporate development the disclosure of which
would, in the good faith judgment of the Board of Directors of the Company, be
harmful to the business, operations, prospects, or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole.
(i) The Company shall cause all Registrable Securities
registered hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(j) The Company shall provide a transfer agent and registrar
for all Registrable Securities registered pursuant to the Registration Statement
and a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration.
(k) The Company shall use commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission.
(l) The Company shall use commercially reasonable efforts to
enable the holders of the Registrable Securities to sell the Registrable
Securities under Rule 144 of the Securities Act.
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(m) Each Electing Holder acknowledges that when such Electing
Holder provides information to the Company under this SECTION 3, such Electing
Holder must provide the information in a written statement signed by or on
behalf of such Electing Holder that expressly states that such information is
for use in the subject Registration Statement, Prospectus or amendment or
supplement thereto. The Company reserves the right not to rely on information
provided by an Electing Holder if such information is not contained in a written
statement meeting the foregoing requirements.
4. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by it whether or not any Registration Statement is filed or becomes effective
and whether or not any securities are issued or sold pursuant to any
Registration Statement. Notwithstanding the foregoing or anything in this
Agreement to the contrary, each holder of the Registrable Securities being
registered shall pay all commissions and underwriting discounts with respect to
any Registrable Securities sold by it and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly).
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. Upon the registration of
the Registrable Securities pursuant to SECTION 2, the Company shall indemnify
and hold harmless each Electing Holder and its affiliates and each underwriter,
selling agent or other securities professional, if any, which facilitates the
disposition of Registrable Securities, and each of their respective officers and
directors and each person who controls such Electing Holder, underwriter,
selling agent or other securities professional within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (each such person being
sometimes referred to as an "Indemnified Person") against any losses, claims,
damages, liabilities or expenses, joint or several, to which such Indemnified
Person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon an untrue statement of a material fact contained
in any Registration Statement or any Prospectus contained therein or furnished
by the Company to any Indemnified Person, or any amendment or supplement
thereto, or arise out of or are based upon the omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading
or any violation by the Company of any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities laws applicable to the
Company in connection with the registration hereunder, and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage, liability or expense arises out of
or is based upon an untrue statement or omission made in such Registration
Statement or Prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by an
instrument duly executed by or on behalf of such Indemnified Person expressly
for use therein; provided, further, however, that the foregoing indemnity
agreement with respect to any Prospectus shall not inure to the benefit of any
Indemnified Person who failed to deliver a final Prospectus or an amendment or
supplement thereto (provided by the Company to the several Indemnified Persons
in the requisite quantity and on a timely basis to permit proper delivery on or
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prior to the relevant transaction date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue statement of
a material fact contained in any Prospectus, or caused by any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, if such material misstatement or omission was cured in such
final Prospectus or amendment or supplement thereto. For the purposes of this
subsection (a), the Company may rely on written information furnished to the
Company by an Indemnified Person via electronic mail.
(b) INDEMNIFICATION BY THE HOLDERS. Each Electing Holder
agrees, as a consequence of the inclusion of any of such holder's Registrable
Securities in any Registration Statement, severally and not jointly, to (i)
indemnify and hold harmless the Company, its directors, its officers who sign
such Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which
the Company or such other persons may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement of a
material fact contained in such Registration Statement or Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company by an
instrument duly executed by or on behalf of such holder and stated to be
expressly for use therein and (ii) reimburse the Company and its directors and
its officers who sign such Registration Statement for any legal or other
expenses reasonably incurred by the Company and such directors and officers in
connection with investigating or defending any such action or claim as such
expenses are incurred. For the purposes of this subsection (b), the Company may
rely on written information furnished to the Company by an Indemnified Person
via electronic mail if such electronic mail is followed within five (5) days
thereof by a written instrument meeting the requirements set forth in the
foregoing sentence. The liability of each Electing Holder shall be in proportion
to and limited to the net amount received by such Electing Holder from the sale
of Registrable Securities pursuant to such Registration Statement.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party under this SECTION 5 of notice of the commencement of any
action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
SECTION 5, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in and to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the reasonably incurred fees and
expenses of one such counsel for all indemnified parties to be reimbursed by the
indemnifying party if representation of any such indemnified party by the
counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. Except as specified in the
immediately preceding sentence, after notice from an indemnifying party to an
indemnified party of such indemnifying party's election to assume the defense
pursuant to the immediately preceding sentence, such indemnifying party shall
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not be liable to the indemnified party under this SECTION 5 for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. The failure to deliver written notice to
the indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of liability to the indemnified
party under this SECTION 5 with respect to such action, except to the extent the
indemnifying party is materially prejudiced as a result of not receiving such
notice, and shall not relieve it of any liability that it may have to any
indemnified party otherwise than under this SECTION 5 or with respect to any
other action except to the extent the indemnifying party is materially
prejudiced as a result of not receiving such notice. No indemnifying party
shall, without the written consent of the indemnified party, which consent will
not be unreasonably withheld, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened action
or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this
SECTION 5 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) of this SECTION 5 in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue statement of a material fact or omission
to state a material fact relates to information about such indemnifying party or
indemnified party supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
SECTION 5(D) were determined by PRO RATA allocation (even if the Electing
Holders or any underwriters, selling agents or other securities professionals or
all of them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this SECTION 5(d). In no event shall the liability of any
Electing Holder be greater in amount than the amount of net proceeds received by
such Electing Holder upon such sale or the amount for which such indemnifying
party would have been obligated to pay by way of indemnification if the
indemnification provided for under this SECTION 5 had been available under the
circumstances. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
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or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Electing Holders and any
underwriters, selling agents or other securities professionals in this SECTION
5(d) to contribute shall be several in proportion to the percentage of
Registrable Securities registered or underwritten, as the case may be, by them
and not joint.
(e) The obligations of the Company under this SECTION 5 shall
be in addition to any liability that the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
SECTION 5 shall be in addition to any liability that such Indemnified Person may
otherwise have to the Company. The remedies provided in this SECTION 5 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to an indemnified party at law or in equity.
6. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Electing Holders holding not less than 50.1% of
the Registrable Securities then held by the Electing Holders at such time
("MAJORITY HOLDERS"). In addition, no amendment to this Agreement that adversely
discriminates against an Electing Holder shall be effective as to such Electing
Holder without such Electing Holder's written consent.
(b) NOTICES. All notices and other communications required or
permitted to be provided to a party hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile (provided the sender
receives a machine-generated confirmation of successful transmission) or e-mail
prior to 5:00 p.m. (Los Angeles, California time) on a Business Day, (ii) the
next Business Day after the date of transmission, if such notice or
communication is delivered via facsimile or e-mail on a day that is not a
Business Day or later than 4:59 p.m. (Los Angeles, California time) on any
Business Day, (iii) the Business Day following the date of mailing, if sent
overnight by an overnight courier service nationally recognized in the United
States, or (iv) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications for a party shall
be as set forth on the signature pages to this Agreement or such other address
as may be designated in writing hereafter, in the same manner, by such party.
(c) PARTIES IN INTEREST. The parties to this Agreement intend
that all holders of Registrable Securities shall be entitled to receive the
benefits of this Agreement and that any Electing Holder shall be bound by the
terms and provisions of this Agreement by reason of such election with respect
to the Registrable Securities that are included in a Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any holder from time to time of the Registrable
Securities to the aforesaid extent. If any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
11
(d) 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.
(e) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning, construction or interpretation hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California
without giving effect to provisions relating to conflicts of law to the extent
the application of the laws of another jurisdiction would be required thereby.
(g) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
(h) SURVIVAL. The respective indemnities, agreements,
representations, warranties and other provisions set forth in this Agreement or
made pursuant hereto shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Electing Holder, any director, officer or partner of such holder, any
agent or underwriter, any director, officer or partner of such agent or
underwriter, or any controlling person of any of the foregoing, and shall
survive the transfer and registration of the Registrable Securities of such
holder.
(i) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(Remainder of page intentionally left blank)
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REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the Company has caused this Registration Rights
Agreement to be duly executed by its authorized signatory as of the date first
indicated above.
Very truly yours,
PACIFIC ENERGY RESOURCES LTD.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: ____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
With a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE
Please confirm by signing in the space provided below that the foregoing
correctly sets forth the agreement between the Company and you.
Accepted and Agreed
_________________________________________________________________
Name (Print)
By: _____________________________________________
Name:
Title:
Date: _____________________________________________
Address: _____________________________________________
_____________________________________________
_____________________________________________
Telephone: _____________________________________________
Facsimile: _____________________________________________
E-mail: _____________________________________________
