EXHIBIT 2.36
REGISTRATION RIGHTS AGREEMENT
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January 30, 1989
Black Petroleum Corporation
c/o Blackstone Management Group
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
This will confirm that in consideration of your agreement on the date
hereof to sell certain oil, gas and hydrocarbon rights to Apple Corp., an Idaho
corporation (the "Company") in exchange for certain cash consideration, an
aggregate of 401,977 shares (the "Shares") of Common Stock, $.005 par value, of
the Company and a Common Stock Purchase Warrant to purchase certain specified
additional shares (the "Warrant Shares") of Common Stock, $.005 par value, of
the Company, pursuant to a Purchase and Sale Agreement of even date herewith
(the "Purchase Agreement") between the Company and you and as an inducement to
you to consummate the transactions contemplated by the Purchase Agreement and
the other agreements referred to therein, the Company covenants and agrees with
you as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.005 par value, of the
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Company, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Restricted Stock" shall mean the Shares and the Warrant Shares of
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Common Stock identified in the preamble hereto, excluding any such Shares of
Common Stock which have been (a) registered under the Securities Act pursuant
to an effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them or (b) publicly
sold pursuant to Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. Required Registration. (a) At any time after January 30, 1992, the
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holders of Restricted Stock constituting at least 50% of the total shares of
Restricted Stock then outstanding may request the Company to register under the
Securities Act all or any portion of the shares of Restricted Stock held by
such requesting holder or holders for sale in the manner specified in such
notice, provided that the shares of Restricted Stock for which registration has
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been requested shall constitute at least 20% of the total shares of Restricted
Stock then outstanding if such holder or holders shall request the registration
of less than all shares of Restricted Stock then held by such holder or holders.
Notwithstanding anything to the contrary contained herein, no request may be
made under this Section 2 within 180 days after the effective date of a
registration statement filed by the Company.
(b) Following receipt of any notice under this Section 2, the Company
shall immediately notify all holders of Restricted Stock from whom notice has
not been received and shall use its best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting holders, the number of shares of
Restricted Stock specified in such notice, (and in all notices received by the
Company from other holders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the holders of a majority of the shares of Restricted Stock to be sold
in such offering may designate the managing underwriter of such offering,
subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed. The Company shall be obligated to register
Restricted Stock pursuant to this Section 2 on two occasions only, provided,
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however, that such obligation shall be deemed satisfied only when a registration
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statement covering at least seventy-five percent (75%) of the shares of
Restricted Stock specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting holders,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
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(c) The Company shall be entitled to include in any registration
statement referred to in this Section 2, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account; provided, however, that if the
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Company's inclusion of shares of its Common Stock to be sold for its own account
in a registration pursuant to this Section 2 should cause the managing
underwriter in an underwritten public offering to decrease the number of shares
of Restricted Stock to be sold pursuant to this Section 2, then such
registration shall be deemed to be a registration of Common Stock initiated by
the Company pursuant to Section 3 hereof. Except for registration statements on
Form X-0, X-0 or any successor thereto, the Company will not file with the
Commission any other registration statement with respect to its Common Stock,
whether for its own account or that of other stockholders, from the date of
receipt of a notice from requesting holders pursuant to this Section 2 until the
completion of the period of distribution of the registration contemplated
thereby.
3. Incidental Registration. If the Company at any time (other than
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pursuant to Section 2 or Section 4) proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account or
for the account of other security holders or both (except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Restricted Stock for sale to the public), each such time it will
give written notice to all holders of outstanding Restricted Stock of its
intention so to do. Upon the written request of any such holder, received by
the Company within 30 days after the giving of any such notice by the Company,
to register any of its Restricted Stock (which request shall state the intended
method of disposition thereof), the Company will use its best efforts to cause
the Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder (in accordance with its written request) of
such Restricted Stock so registered. In the event that any registration
pursuant to this Section 3 shall be, in whole or in part, an underwritten public
offering of Common Stock, the number of shares of Restricted Stock to be
included in such an underwriting may be reduced (pro rata among the requesting
holders based upon the number of shares of Restricted Stock owned by such
holders) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein, provided,
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however, that such number of shares of Restricted Stock shall not be reduced if
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any shares are to be included in such underwriting for the account of any person
other than the Company or requesting holders of Restricted Stock, and provided,
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further, however, that in no event may less than twenty-five percent (25%) of
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the total number of shares of Common Stock to be included in such underwriting
be made available for shares of Restricted Stock. Notwithstanding the foregoing
provisions, the Company may withdraw or postpone any registration statement
referred to in this Section 3 without thereby incurring any liability to the
holders of Restricted Stock.
4. Registration on Form S-3. If at any time (i) a holder or holders of
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Restricted Stock constituting at least 20% of the total shares of Restricted
Stock then outstanding request that the Company file a registration statement on
Form S-3 or any successor thereto for a public offering of all or any portion of
the shares of Restricted Stock held by such requesting holder or holders, and
(ii) the Company is a registrant entitled to use Form S-3 or any successor
thereto to register such shares, then the Company shall use its best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of shares of Restricted Stock specified in such notice.
Whenever the Company is required by this Section 4 to use its best efforts to
effect the registration of Restricted Stock, each of the procedures and
requirements of Section 2 (including but not limited to the requirement that the
Company notify all holders of Restricted Stock from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration, provided, however, that there shall be no more
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than two registrations on Form S-3 effected under this Section 4 in any twelve
(12) month period.
5. Registration Procedures. If and whenever the Company is required by
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the provisions of Sections 2, 3 or 4 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
(which, in the case of an underwritten public offering pursuant to Section 2,
shall be on Form S-1, Form S-18 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for
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the period of the distribution contemplated thereby (determined as hereinafter
provided):
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for the period
specified in paragraph (a) above and comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each underwriter
such number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request,
provided, however, that the Company shall not for any such purpose be required
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to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of Restricted Stock and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
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(g) if the offering is underwritten, at the request of any seller of
Restricted Stock use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the seller, in form and substance
identical to the letter delivered by such counsel to the underwriters and (ii) a
letter dated such date from the independent public accountants retained by the
Company, addressed to such seller, in form and substance identical to the letter
delivered by such independent public accountants to the underwriters; and
(h) make available for inspection by each seller of Restricted Stock,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, 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 seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 5(a) and 5(b) and of Section 2(c), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby or 120 days
after the effective date thereof.
In connection with each registration hereunder, the sellers of Restricted
Stock will furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 2, 3 or 4
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
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6. Expenses. All expenses incurred by the Company in complying with
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Sections 2, 3 and 4, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "Blue Sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance, but excluding any
Selling Expenses, are called "Registration Expenses". All underwriting
discounts, selling commissions applicable to the sale of Restricted Stock and
fees and disbursements of one special counsel for the sellers of Restricted
Stock are called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 2 and 3 and the first four registrations
effected by the Company pursuant to Section 4. All Selling Expenses in
connection with each registration statement under Section 2, 3 or 4 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
7. Indemnification and Contribution. (a) In the event of a registration
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of any of the Restricted Stock under the Securities Act pursuant to Sections 2,
3 or 4, the Company will indemnify and hold harmless each seller of such
Restricted Stock thereunder, each underwriter of such Restricted Stock,
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person 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 any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 2, 3 or 4, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and
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each such controlling person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or motion, provided, however, that the company will not be
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liable in any case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
(b) In the event of a registration of any of the Restricted Stock under
the Securities Act pursuant to Sections 2, 3 or 4, each seller of such
Restricted Stock thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company, who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Securities Act,
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or Controlling person 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 any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Restricted Stock
was registered under the Securities Act pursuant to Sections 2, 3 or 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that such seller will be liable hereunder in any such case if
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and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus, and
provided, further, however, that the liability of each seller hereunder shall be
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limited to the proportion of any such loss, claim,
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damage, liability or expense which is equal to the proportion that the public
offering price of the shares sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not in any event to exceed the proceeds received by such seller
from the sale of Restricted Stock covered by such registration statement.
8. Changes in Common Stock. If, and as often as, there is any change in the
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Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
9. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon request a
written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
10. Representations and Warranties of the Company. The Company represents
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and warrants to you as follows:
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(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Articles of Incorporation or By-laws of the Company or any
provision of any indenture, agreement or other instrument to which it or any or
its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligations of the Company,
enforceable in accordance with its terms.
11. Miscellaneous.
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(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefits of the
respective successors, heirs and assigns of the parties hereto (including
without limitation transferees of any Restricted Stock), whether so expressed or
not.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company, at the address set forth in the Purchase Agreement,
with a copy of any such notice, request, consent or other communications
hereunder to Xxxxxxx Xxxxxxx, Esq., 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx,
Xxxx 00000;
If to Black Petroleum Corporation, at the address set forth in the
Purchase Agreement, with a copy of any such notice, request, consent or
other communications hereunder to Xxxxxx X. Xxxxxx, Esq., Powers & Hall
Professional Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
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If to any subsequent holder of Restricted Stock, to such holder at such
address as may have been furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock) or to
the holders of Restricted Stock (in the case of the Company) in accordance with
the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
(d) This Agreement may not be amended or modified, and no provision hereof
may be waived, without the written consent of the Company and the holders of at
least two-thirds of the outstanding shares of Restricted Stock affected by such
amendment, modification or waiver.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) The obligations of the Company to register shares of Restricted Stock
under Sections 4, 5 or 6 shall terminate on the seventh anniversary of the date
of this Agreement or three years after the initial public offering of the
Company, whichever is later.
(g) The Company shall not grant to any third party any registration rights
more favorable than any of those contained herein, so long as any of the
registration rights under this Agreement remain in effect.
(h) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
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Upon your acceptance of the foregoing by signing and returning the enclosed
counterpart of this letter, this Agreement shall be a binding agreement between
the Company and you.
Very truly yours,
APPLE CORP.
By: /s/ Xxxx X. Xxxx
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Title: President
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AGREED TO AND ACCEPTED as of
the date first above written.
BLACK PETROLEUM CORPORATION
By: /s/ Xxxxxx X. XxXxxx
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Title: Vice President and Treasurer
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