EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of September
19, 2003, is executed and delivered by and between Delta Petroleum
Corporation, a Colorado corporation (the "Company"), and Xxxxxx Xxxx Xxxxx, an
unmarried man ("Xxxxx") and Xxxxxx Xxxx Xxxxx, L.L.C., a Nevada limited
liability company ("Xxxxx, LLC" (collectively, Xxxxx and Xxxxx, LLC are
"EMD").
W I T N E S S E T H:
WHEREAS, pursuant to the terms of that certain Purchase and Sale
Agreement dated effective as of August 1, 2003 between EMD as "Seller" and the
Company as "Buyer" (the "Purchase and Sale Agreement"), EMD will initially
acquire one million (1,000,000) shares of the Company's Common Stock and may
in the future acquire up to a maximum of 1,900,000 additional shares (the
"Registrable Securities"); and
WHEREAS, the Registrable Securities are being issued and delivered by the
Company in reliance upon the exemption from the registration provisions of the
United States Securities Act of 1933, as amended (the "Securities Act"), for
non-public offerings pursuant to Sections 4(2) and 4(6) of the Securities Act
and Regulation D under the Securities Act; and
WHEREAS, the terms and conditions of the Purchase and Sale Agreement
provide for the execution and delivery of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. As used in this Agreement, the capitalized terms set
forth below shall have the following meanings:
"Affiliate" shall mean, as to a specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls or
is controlled by, or is under common control with, the Persons
specified.
"Company" shall have the meaning set forth in the preamble, and shall
also include the Company's successors.
"Exchange Act" shall mean the United States Securities Exchange Act of
1934, as amended.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean any individual, sole proprietorship, partnership,
corporation, association, limited liability company, joint venture,
trust, unincorporated entity or other entity, or the government of any
country or sovereign state, or of any state, province, municipality or
other political subdivision thereof.
"Prospectus" shall mean the Prospectus included in any Registration
Statement including any preliminary Prospectus, and any such Prospectus
as amended or supplemented by any Prospectus supplement, including
post-effective amendments, in each case including all material
incorporated or deemed to be incorporated by reference therein.
"Registrable Securities" shall have the meaning set forth in the
preamble; provided, however, that any shares of Common Stock shall cease
to be Registrable Securities when they shall have been included in an
effective Registration Statement or sold pursuant to Rule 144.
"Registration Expenses" shall mean any and all expenses incident to the
performance by the Company of its obligations under this Agreement,
including, but not limited to: (i) all SEC and NASD registration and
filing fees; (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws; (iii) all expenses of
printing and distributing any Registration Statement, any Prospectus,
and any amendments or supplements thereto; and (iv) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company.
"Registration Statement" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including a Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Rule 144" means Rule 144 of the General Rules and Regulations
promulgated under the Securities Act or any successor rule.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall have the meaning set forth in the preamble.
"Underwriter" shall have the meaning set forth in Section 2(11) of the
Securities Act who signs an underwriting agreement with the Company for
an underwritten offering of any of the Company's equity securities.
2. Registration.
(a) The Company agrees that within thirty (30) days following the
date of Closing of the Purchase and Sale Agreement, the Company shall file a
registration statement, and shall use commercially reasonably efforts to cause
such Registration Statement to become effective with respect to such
Registrable Securities in accordance with the registration procedure set forth
in Section 4 hereof.
(b) In the event that the registration is pursuant to a
"firm-commitment" underwriting, EMD shall (together with the Company and any
other holders of Common Stock distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with
underwriter or underwriters selected for underwriting by the Company.
3. Holdback Agreements. If any of EMD's Registrable Securities are covered
by a Registration Statement filed pursuant to this Agreement, if requested of
all holders of registrable shares of the Common Stock of the Company covered
by such Registration Statement by the managing underwriters in an underwritten
offering (if timely notified in writing by the Company or the managing
underwriters), EMD agrees not to effect any public sale or distribution of
securities of the Company of any class included in such Registration
Statement, including a sale pursuant to Rule 144 (except as a part of such
underwritten offering) to the same extent as has been requested by such other
holders, during the 10-day period prior to, and the 180-day period beginning
on, the effective date of any underwritten offering made pursuant to such
Registration Statement.
4. Expenses and Procedures. This Section 4 shall be applicable to a
registration of Registrable Securities pursuant to this Agreement.
(a) Expenses of Registration. All Registration Expenses (exclusive
of underwriting discounts and commissions) shall be borne by the Company. EMD
shall bear all underwriting discounts, selling commissions, sales concessions
and similar expenses applicable to any sale of the Registrable Securities sold
by EMD.
(b) Registration Procedures. In the case of the registration,
qualification or compliance effected by the Company pursuant to this
Agreement, the Company will keep EMD advised as to the initiation of
registration, qualification and compliance and as to the completion thereof.
At its expense, the Company will furnish such number of Prospectuses and other
documents incident thereto as EMD or underwriters from time to time may
reasonably request.
(c) Information. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish such
information regarding the distribution of such Registrable Securities as the
Company may from time to time reasonably request.
(d) Delay or Suspension. Notwithstanding anything herein to the
contrary, the Company may, at any time, suspend the effectiveness of any
Registration Statement for a period of up to 30 consecutive days or 60 days in
the aggregate in any calendar year, as appropriate (a "Suspension Period"), by
giving notice to EMD to be included in the Registration Statement, if the
Company shall have determined, after consultation with its counsel, that the
Company is required to disclose any material corporate development which the
Company determines could reasonably be expected to have a material effect on
the Company. EMD agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of a Suspension Period, EMD shall
forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus until EMD (i) is advised in writing
by the Company that the use of the applicable Prospectus may be resumed, (ii)
has received copies of a supplemental or amended prospectus, if applicable,
and (iii) has received copies of any additional or supplemental filings which
are incorporated or deemed to be incorporated by reference in such Prospectus.
The Company shall prepare, file and furnish to EMD immediately upon the
expiration of any Suspension Period, appropriate supplements or amendments, if
applicable, to the Prospectus and appropriate documents, if applicable,
incorporated by reference in the Registration Statement. The Company agrees
to use its best efforts to cause any Suspension Period to be terminated as
promptly as possible and to cause such Registration Statement to continuously
remain effective until such time as the Registrable Securities are either sold
by EMD or are eligible for sale by EMD or its affiliates in accordance with
the provisions of subsection (k) of Rule 144.
(e) Blue Sky. The Company will, as expeditiously as possible, use
its best efforts to register or qualify the Registrable Securities covered by
a Registration Statement under the securities or blue sky laws of such
jurisdictions as EMD or, in the case of an underwritten public offering, the
managing underwriter shall reasonably request, provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify
to do business in any jurisdiction where it is not so qualified or to take any
action which would subject it to taxation or service of process in any
jurisdiction where it is not otherwise subject to such taxation or service of
process.
(f) Notification of Material Events. The Company will, as
expeditiously as possible, immediately notify EMD, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus
contained in such Registration Statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and, as
expeditiously as possible, amend or supplement such prospectus to eliminate
the untrue statement or the omission.
(g) Opinions. The Company will use its best efforts (if the offering
is underwritten) to furnish, at the request of EMD, on the date that
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration: (i) an opinion of counsel representing the Company for the
purposes of such registration dated such date, addressed to the
Underwriter(s), stating that such Registration Statement has become effective
under the Securities Act and that (A) to the best knowledge of such counsel,
no stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the Registration Statement, the
related prospectus, and each amendment or supplement thereof, comply as to
form in all material respects with the requirements of the Securities Act
(except that such counsel need express no opinion as to financial statements
and financial and statistical data contained therein) and (C) to such other
effects as may reasonably be requested by counsel for the Underwriter(s), and
(ii) a letter dated such date from the independent public accountants retained
by the Company, addressed to the Underwriter(s), stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the Registration Statement or the Prospectus, or any
amendment or supplement thereof, comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, and such
letter shall additionally cover such other financial matters (including
information as to the period ending no more than five business days prior to
the date of such letter) with respect to the registration in respect of which
such letter is being given as such underwriters or EMD may reasonably request.
5. Certification by Selling Shareholders. EMD shall review the
Registration Statement prepared and filed in connection with any such
registration and shall represent and warrant to the Underwriter, if any, and
the Company that EMD does not know of an untrue statement of a material fact
concerning EMD included in the Registration Statement or the omission from the
Registration Statement of any material fact concerning EMD required to be
stated therein or necessary to make the statements therein not misleading.
6. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company agrees
to indemnify and hold harmless EMD, each Affiliate of EMD, the directors,
partners, officers, employees and agents of EMD and each person who controls
EMD, if any, within the meaning of either the Securities Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law 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 a material fact contained in the
Registration Statement as originally filed or in any amendment thereof, or in
any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, 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 agrees to
reimburse each such indemnified party, as incurred, 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 (i) the Company will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of EMD specifically for
inclusion therein, (ii) the Company will not be liable to any indemnified
party under this indemnity agreement with respect to any Registration
Statement or Prospectus to the extent that any such loss, claim, damage or
liability of such indemnified party results from the use of the Prospectus
during a period when the use of the Prospectus has been suspended in
accordance with Section 4(d) hereof, provided that the indemnified party
received prior notice of such suspension, which notice shall be deemed to have
been received by the indemnified party within 48 hours after the giving
thereof; and (iii) the Company shall not be liable to any indemnified party
with respect to any preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results from the fact
that such indemnified party sold Registrable Securities to a person as to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Securities
Act, if the loss, claim, damage or liability of such indemnified party results
from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the Prospectus or in the
Prospectus as then amended or supplemented. This indemnity agreement will be
in addition to any liability which the Company may otherwise have. The
Company also agrees to indemnify and provide contribution to each person who
is an Underwriter and who signs an underwriting agreement and/or a
selected-dealer agreement with respect to the Registrable Securities, its
officers and directors, and each person who controls each such Underwriter, on
substantially the same basis as that of the indemnification of and
contribution to EMD provided in this Section 6(a).
(b) By its participation in a Registration Statement, EMD shall be
deemed to have agreed to indemnify and hold harmless (i) the Company, (ii)
each of its directors, (iii) each of its officers who signs such Registration
Statement and (iv) each person who controls the Company within the meaning of
either the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to EMD and its affiliates, but only with respect to
written information relating to EMD furnished to the Company by or on behalf
of EMD specifically for inclusion in the documents referred to in the
foregoing indemnity. EMD shall also be deemed to have agreed to indemnify and
contribute to each Underwriter who signs an underwriting agreement and/or a
selected-dealer agreement in connection with such Registration Statement, its
officers and directors, and each person who controls each such Underwriter, on
substantially the same basis as that of the indemnification of and
contribution to the Company provided in this Section 6(b). Anything in this
Agreement contained to the contrary notwithstanding, the liability of EMD for
indemnification or contribution hereunder shall be limited to the amount of
proceeds received by EMD in the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure so to promptly notify the indemnifying party will not
relieve the indemnifying party from liability under Section 6(a) or 6(b)
hereof unless and to the extent that it is materially prejudiced thereby. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and
local counsel) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action included both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution or such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnified party shall not settle or
compromise any action for which it seeks indemnification or contribution
hereunder without the prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties or actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) The provisions of this Section 6 shall remain in full force and
effect regardless of any investigation made by or on behalf of EMD or the
Company or any other persons who are entitled to indemnification pursuant to
the provisions of this Section 6, and shall survive the sale by EMD of
Registrable Securities.
7. Rule 144. As long as the Company is subject to the reporting
requirements of Section 13 or 15 of the Exchange Act, the Company shall use
commercially reasonable efforts to promptly file the reports required to be
filed by it pursuant to Section 13(a) or 15(d) of the Exchange Act and the
rules and regulations adopted by the SEC thereunder. If the Company is at any
time not required to file such reports, it shall promptly make publicly
available such information as is necessary to permit sales pursuant to Rule
144. Upon the request of EMD, the Company shall deliver to EMD a written
statement as to whether it has complied with such requirements.
8. Amendments. This Agreement may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions of
this Agreement may not be given, unless they would not have an adverse effect
upon the rights of EMD and the Company has obtained the consent of EMD.
9. Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon, the Company, EMD and their respective successors, assigns
and transferees.
10. Third Party Beneficiaries. EMD from time to time shall be a third
party beneficiary of the agreements of the Company contained herein.
11. Headings. The headings which are contained in this Agreement are for
the sole purpose of convenience of reference, and shall not limit or otherwise
affect the interpretation of any of the provisions hereof.
12. Governing Law. This Agreement shall be governed by the laws of the
State of Colorado applicable to contracts made and to be wholly performed
therein.
13. Notices. All notices and other communications hereunder shall be in
writing, and shall be made by hand delivery, registered first-class mail,
telecopier or any courier providing overnight delivery, at the addresses set
forth for notices in the Purchase and Sale Agreement. All such notices and
other communications shall be deemed to have been duly given upon receipt.
14. Entire Agreement. This Agreement sets forth the entire agreement
among the parties with respect to the subject matter hereof.
15. Severability. In the event that any one or more of the provisions of
this Agreement, or the application thereof in any circumstances, 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 of this Agreement shall not be in any way impaired
or affected thereby.
16. Interpretation. As used in this Agreement, unless the context
otherwise requires: words describing the singular number shall include the
plural and vice versa; words denoting any gender shall include all genders;
words denoting natural persons shall include corporations, partnerships and
other entities, and vice versa; and the words "hereof," "herein," and
"hereunder," and words of similar import, shall refer to this Agreement as a
whole, and not to any particular provision of this Agreement.
17. Waiver. The failure of the Company or EMD to at any time enforce any
of the provisions of this Agreement shall not be deemed or construed to be a
waiver of any such provision, nor to in any way affect the validity of this
Agreement or any provision hereof or the right of the Company or EMD to
thereafter enforce each and every provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement as of the date above written.
"Company"
DELTA PETROLEUM CORPORATION
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
President
"EMD"
XXXXXX XXXX XXXXX, L.L.C.
By /s/ Xxxxxx Xxxx Xxxxx
---------------------------------
Xxxxxx Xxxx Xxxxx, sole owner
and Manager
