FORM OF REGISTRATION RIGHTS AGREEMENT dated as of among NTR ACQUISITION CO. and OCCIDENTAL PETROLEUM INVESTMENT CO.
FORM
OF
dated
as
of
__________________,
2007
among
and
OCCIDENTAL
PETROLEUM INVESTMENT CO.
TABLE
OF CONTENTS
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SECTION 1.
DEFINITIONS
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1
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SECTION 2.
REGISTRATION RIGHTS
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4
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SECTION 3.
MISCELLANEOUS
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19
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i
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”),
dated
as of ______________________, 2007, by and among NTR ACQUISITION CO., a Delaware
corporation (the “Company”)
and
OCCIDENTAL PETROLEUM INVESTMENT CO., a California corporation (“Occidental”).
WHEREAS,
Occidental owns [_____] shares (the “Shares”)
of the
Company’s Senior Convertible Preferred Stock, $1000 liquidation preference per
share, par value $0.0001 per share, convertible into the Company’s common stock,
par value $0.001 per share (the “Common
Stock,”
collectively, the “Securities”),
all
of which were acquired by private placement;
WHEREAS,
Occidental may in certain circumstances and subject to certain transfer and
other restrictions transfer (or cause to be transferred) some or all of the
Securities to transferees who, on consummation of such transfer, hold not less
than 10% of the Securities owned by Occidental on the date hereof (each, a
“Permitted
Transferee”);
WHEREAS,
Occidental and the Company desire to enter into this Agreement to provide
Occidental with certain rights relating to the registration of the Securities,
and to provide for any Permitted Transferees who receive Securities from time
to
time with the ability to accede to this agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises, covenants
and agreements of the parties hereto, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
SECTION 1.
DEFINITIONS
1.1.
Defined Terms. As
used
in this Agreement, the following terms shall have the following meanings:
“Adverse
Disclosure”
means
public disclosure of material non-public information, which disclosure, in
the
good faith judgment of the chief executive officer or principal financial
officer of the Company after consultation with counsel to the Company,
(i) would be required to be made in any Registration Statement or
prospectus in order for the applicable Registration Statement or prospectus
not
to contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein (in the case of any prospectus
and
any preliminary prospectus, in light of the circumstances under which they
were
made) not misleading, (ii) would not be required to be made at such time if
the Registration Statement were not being filed and (iii) the Company has a
bona
fide
business
purpose for not publicly making it.
“Agreement”
has
the
meaning set forth in the preamble hereto.
1
“Business
Day”
means
any day, except a Saturday, Sunday or legal holiday on which the banking
institutions in the City of New York are authorized or obligated by law or
executive order to close.
“Common
Stock”
has
the
meaning set forth in the recitals.
“Company”
has
the
meaning set forth in the preamble and shall include the Company’s successors by
merger, acquisition, reorganization or otherwise.
“Demand
Registration”
has
the
meaning set forth in Section 2.2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor thereto,
and
any rules and regulations promulgated thereunder, all as the same shall be
in
effect from time to time.
“holder”
or
“holders”
means
any holder or holders of Registrable Securities who is a party hereto or who
otherwise agrees in writing to be bound by the provisions of this Agreement
pursuant to Section 3.3.
“Incidental
Registration”
has
the
meaning set forth in Section 2.3(a).
“Initial
Business Combination”
means
the acquisition by the Company, through a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or other similar business
combination, of one or more businesses or assets in the energy industry.
“Loss”
has
the
meaning set forth in Section 2.9(a).
“NASD”
means
the National Association of Securities Dealers, Inc.
“Occidental”
has
the
meaning set forth in the preamble hereto.
“Permitted
Transferee”
has
the
meaning set forth in the recitals hereto.
“Person”
shall
be construed as broadly as possible and shall include an individual,
corporation, association, partnership (including a limited liability partnership
or a limited liability limited partnership), limited liability company, estate,
trust, joint venture, unincorporated organization or a government or any
department, agency or political subdivision thereof.
“Prospectus”
means
the prospectus included in any Registration Statement, all amendments and
supplements to such prospectus and all material incorporated by reference in
such prospectus.
2
“Registrable
Securities”
means
the Shares and the shares of Common Stock issuable upon conversion of the Shares
after the Release Date; provided,
however,
that
any of the foregoing securities shall cease to be Registrable Securities to
the
extent that (i) a Registration Statement with respect to their sale has
been declared effective under the Securities Act and they have been sold,
transferred, disposed of or exchanged pursuant to such Registration Statement,
(ii) they have been otherwise transferred pursuant to Rule 144 under the
Securities Act (or any similar rule or regulation then in force), new
certificates for them not bearing a legend restricting transfer under the
Securities Act shall have been delivered by the Company and they may be publicly
resold without volume or method of sale restrictions without registration under
the Securities Act or (iii) they have ceased to be outstanding. For
purposes of this Agreement, the shares of Common Stock issuable upon conversion
of the Shares shall constitute one “class” of Registrable Securities and the
Shares shall constitute another class of Registrable Securities; provided
that
no
Registrable Securities shall be part of the relevant class until the Release
Date. A “percentage” (or a “majority”) of the Registrable Securities or any
class thereof (or, where applicable, of any other securities) shall be
determined based on the total number of such securities outstanding at the
relevant time.
“Registration”
means
a
registration of the Company’s securities for sale to the public under a
Registration Statement.
“Registration
Statement”
means
any registration statement (other than a registration statement on Form S-4
or
Form S-8) of the Company for a public offering of the Company’s securities filed
with, or to be filed with, the SEC under the rules and regulations promulgated
under the Securities Act, including the prospectus, amendments and supplements
to such registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
“Release
Date”
means
the date that is 180 days from the date the Company completes its Initial
Business Combination.
“SEC”
means
the Securities and Exchange Commission.
“Securities”
has
the
meaning set forth in the recitals.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor thereto, and any
rules
and regulations promulgated thereunder, all as the same shall be in effect
from
time to time.
“Shares”
has the meaning set forth in the recitals.
“Underwritten
Offering”
means
a
registration in which securities of the Company are sold to an underwriter
or
underwriters on a firm commitment basis for reoffering to the public.
1.2.
General Interpretive Principles.
Whenever
used in this Agreement, except as otherwise expressly provided or unless the
context otherwise requires, any noun or pronoun shall be deemed to include
the
plural as well as the singular and to cover all genders. The name assigned
to
this Agreement and the section captions used herein are for convenience of
reference only and shall not be construed to affect the meaning, construction
or
effect hereof. Unless otherwise specified, the terms “hereof,” “herein,”
“hereunder” and similar terms refer to this Agreement as a whole (including the
exhibits, schedules and disclosure statements hereto), and references herein
to
Sections refer to Sections of this Agreement. Any reference to included items
shall be understood to be without limitation to the items listed.
3
SECTION 2.
REGISTRATION RIGHTS
2.1.
Registrations
on Form S-3.
(a)
Filing.
The
holders of Registrable Securities may at any time and from time to time on
or
after the Release Date, request in writing that the Company register the resale
of any or all of such Registrable Securities on Form S-3 or a successor or
other
appropriate, similar short-form registration which may be available at such
time
(“Form
S-3”);
provided,
however,
that
(i) the Company shall not be obligated to effect such request through an
Underwritten Offering and (ii) the Company shall not be obligated to effect
such a request if the Company has within the preceding six (6) months
effected a registration on Form S-3. Upon receipt of such written request,
the
Company will promptly give written notice of the proposed registration to all
other holders of Registrable Securities, and, as soon as practicable thereafter,
effect the registration of all or such portion of such holder’s or holders’
Registrable Securities as are specified in such request, together with all
or
such portion of the Registrable Securities of any other holder or holders
joining in such request as are specified in a written request given within
fifteen (15) business days after receipt of such written notice from the
Company; provided,
however,
that
the Company shall not be obligated to effect any such registration pursuant
to
this Section 2.1:
(i) if Form S-3 is not available for such offering; or (ii) if the
holders of the Registrable Securities, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose
to
sell Registrable Securities at an aggregate offering price to the public of
less
than $500,000. Registrations effected pursuant to this Section 2.1
shall
not be counted as Demand Registrations effected pursuant to Section 2.2.
(b)
Suspension
of Registration.
If the
filing, initial effectiveness or continued use of Form S-3 at any time would
require the Company to make an Adverse Disclosure or would require the inclusion
in such Form S-3 of financial statements that are unavailable to the Company
for
reasons beyond the Company’s control, the Company may, upon giving prompt
written notice of such action to the holders, delay the filing or initial
effectiveness of, or suspend use of, the Form S-3 for the shortest period of
time determined in good faith by the Company to be necessary for such purpose.
In the event the Company exercises its rights under the preceding sentence,
the
holders agree to suspend, immediately upon their receipt of the notice referred
to above, their use of the prospectus relating to the registration on such
Form
S-3 in connection with any sale or offer to sell Registrable Securities and
agree not to disclose to any other Person the fact that the Company has
exercised such rights or any related facts except as may be required by law,
rule or stock exchange requirement. The Company shall immediately notify the
holders on the expiration of any period during which it exercised its rights
under this Section 2.1(b).
4
2.2.
Demand Registrations.
(a)
Demand
by Holders.
(i) At any time and from time on or after the applicable Release Date, the
holders of not less than a majority of any class of the Registrable Securities
may make a written request to the Company for registration of all or part of
each such class of Registrable Securities held by those holders; provided
that the
estimated market value of the Registrable Securities of all classes to be so
registered thereunder is at least $500,000 in the aggregate. Any such requested
registration shall be referred to as a “Demand
Registration.”
Each
request for a Demand Registration shall specify the class(es) and aggregate
amount(s) of Registrable Securities to be registered and the intended methods
of
distribution thereof.
(ii)
Within five (5) business days following receipt of any request for a Demand
Registration, the Company shall deliver written notice of such request to all
other holders of Registrable Securities of the class or classes to be
registered. Thereafter, the Company shall include in such Demand Registration
any additional Registrable Securities of each such class which the holder or
holders thereof have requested in writing be included in such Demand
Registration; provided
that all
such requests have been received by the Company within ten (10) business
days of the Company’s having sent the applicable notice to such holder or
holders (each such holder, including the holder of Registrable Securities
identified in such Demand Registration, a “Demanding
Holder”).
All
such requests shall specify the class and aggregate amount of Registrable
Securities to be registered and the intended method of distribution. The Company
may include in such registration additional securities of the class or classes
of the Registrable Securities to be registered thereunder, including securities
to be sold for the Company’s own account or for the account of Persons who are
not holders of Registrable Securities.
(iii)
As
promptly as practicable, and, in any event, within sixty (60) days
following receipt of a request for a Demand Registration, the Company shall
file
a Registration Statement relating to such Demand Registration and thereafter
the
Company shall use its reasonable best efforts to cause such Registration
Statement to be declared effective under the Securities Act.
(b)
Limitation
on Demand Registrations.
In no
event shall the Company be required to effect more than two (2) Demand
Registrations.
(c)
Demand
Withdrawal.
A
holder may withdraw its Registrable Securities from a Demand Registration at
any
time. If all holders withdraw, or holders withdraw Registrable Securities from
a
Demand Registration in such amounts that the Registrable Securities of all
classes that remain covered by the relevant Registration Statement have an
estimated market value of less than $500,000, the Company shall cease all
efforts to secure registration and such registration shall be deemed a Demand
Registration for purposes of Section 2.2(b)
unless
the withdrawal is based on the reasonable determination of the Demanding Holders
that there has been, since the date of such request, a material adverse change
in the business or prospects of the Company or in general market conditions.
In
the event that a withdrawal by Demanding Holders is based upon material adverse
information relating to the Company that is different from the information
known
or reasonably available to the Demanding Holders at the time of their request
for a Demand Registration, such registration shall not be counted as a Demand
Registration.
5
(d)
Effective
Registration.
The
Company shall be deemed to have effected a Demand Registration if the applicable
Registration Statement is declared effective by the SEC and remains effective
for not less than 180 days (or such shorter period as will terminate when all
Registrable Securities covered by such Registration Statement have been sold
or
withdrawn) plus such number of days as the Company exercises its rights under
Section
2.2(e)
and the
Company has complied with all of its obligations under this Agreement with
respect thereto; provided,
however,
that
if, after such Registration Statement has been declared effective, the offering
of Registrable Securities pursuant to a Demand Registration is interfered with
by any stop order or injunction of the SEC or any other governmental agency
or
court, the Registration Statement with respect to such Demand Registration
will
be deemed not to have been declared effective, unless and until, (i) such
stop order or injunction is removed, rescinded or otherwise terminated, and
(ii) holders of a majority of the relevant class or classes of Registrable
Securities thereafter elect to continue the offering; provided,
further,
that
the Company shall not be obligated to file a second Registration Statement
until
a Registration Statement that has been filed is counted as a Demand Registration
or is terminated.
(e)
Suspension
of Registration.
If the
filing, initial effectiveness or continued use of a Registration Statement
in
respect of a Demand Registration at any time would require the Company to make
an Adverse Disclosure or would require the inclusion in such Registration
Statement of financial statements that are unavailable to the Company for
reasons beyond the Company’s control, the Company may, upon giving prompt
written notice of such action to the holders, delay the filing or initial
effectiveness of, or suspend use of, such Registration Statement for the
shortest possible period of time determined in good faith by the Company to
be
necessary for such purpose. In the event the Company exercises its rights under
the preceding sentence, the holders agree to suspend, immediately upon their
receipt of the notice referred to above, their use of the prospectus relating
to
the Demand Registration in connection with any sale or offer to sell Registrable
Securities. The Company shall immediately notify the holders of the expiration
of any period during which it exercised its rights under this Section 2.2(e).
(f)
Underwritten
Offering.
If the
holders of not less than a majority of the Registrable Securities of any class
that is included in any offering pursuant to a Demand Registration so elect,
the
offering of all of the Registrable Securities of that class shall be in the
form
of an Underwritten Offering and the right of any holder to include Registrable
Securities of that class in the Demand Registration shall be conditioned upon
such holder’s participation in the Underwritten Offering. The holders of a
majority of the class of Registrable Securities included in such Underwritten
Offering shall, in consultation with the Company, have the right to select
the
managing underwriter or underwriters for the offering, subject to the right
of
the Company should it so choose to select one co-managing underwriter reasonably
acceptable to such holders. All holders proposing to distribute their
Registrable Securities through such an underwriting shall enter into an
underwriting agreement in customary form with the underwriter(s) selected for
such underwriting.
6
(g)
Reduction
of Offering.
If the
managing underwriter or underwriters of a proposed Underwritten Offering of
a
class of Registrable Securities included in a Demand Registration, inform the
holders of such Registrable Securities and the Company (or the holders of
Registrable Securities who have requested the Demand Registration in the case
of
a Demand Registration that is not being underwritten, inform the Company) in
writing that, in its or their opinion, the number of securities of such class
requested to be included in such Demand Registration, including securities
of
the Company for its own account or for the account of other Persons who are
not
holders of Registrable Securities that the Company desires to sell and any
securities as to which registration has been requested pursuant to written
piggy-back registration rights (as described in Section 2.3),
exceeds the maximum dollar amount or maximum number of securities, as
applicable, that can be sold in such offering without being likely to have
a
significant adverse effect on the price, timing or distribution of the class
of
securities offered or the market for the class of securities offered (such
maximum dollar amount or maximum number of securities, as applicable, the
“Maximum
Number of Securities”),
then
the Company shall include in such registration:
(i)
first, Registrable Securities as to which Demand Registration has been requested
by the Demanding Holders, in an amount up to but not exceeding the Maximum
Number of Securities (allocated pro
rata
among
the holders who have requested participation in the Demand Registration, based,
for each such holder, on the percentage derived by dividing (x) the number
of Registrable Securities of such class which such holder has requested to
include in such Demand Registration by (y) the aggregate number of
Registrable Securities of such class which all such holders have requested
to
include);
(ii)
second, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clause (i), securities that the Company desires to sell
that
can be sold without exceeding the Maximum Number of Securities;
(iii)
third, to the extent that the Maximum Number of Securities has not been reached
under the foregoing clauses (i) and (ii), securities for the account of
other Persons that the Company is obligated to register pursuant to written
contractual arrangements with such Persons and that can be sold without
exceeding the Maximum Number of Securities; and
(iv)
fourth, to the extent that the Maximum Number of Securities have not been
reached under the foregoing clauses (i), (ii), and (iii), securities that other
security holders of the Company desire to sell that can be sold without
exceeding the Maximum Number of Securities.
To
the
extent that any Registrable Securities requested to be registered are excluded
pursuant to the foregoing provisions, the holders shall have the right to one
additional Demand Registration under this Section 2.2.
7
(h)
Registration
Statement Form.
Registrations under this Section 2.2
shall be
on such appropriate registration form of the SEC (i) as shall be selected
by the Company and as shall be reasonably acceptable to the holders of a
majority of each class of Registrable Securities requesting participation in
the
Demand Registration and (ii) as shall permit the disposition of the
Registrable Securities in accordance with the intended method or methods of
disposition specified in the applicable holders’ requests for such registration.
Notwithstanding the foregoing, if, pursuant to a Demand Registration,
(x) the Company proposes to effect registration by filing a Registration
Statement on Form S-3, (y) such registration is in connection with an
Underwritten Offering and (z) the managing underwriter or underwriters
shall advise the Company in writing that, in its or their opinion, the use
of
another form of registration statement (or the inclusion, rather than the
incorporation by reference, of information in the prospectus related to a
Registration Statement on Form S-3) is of material importance to the success
of
such proposed offering, then such registration shall be effected on such other
form (or such information shall be so included in such prospectus).
2.3.
Incidental Registrations (“Piggy-Back” Registrations).
(a)
Participation.
(i) If at any time on or after the Release Date, the Company proposes to
file a Registration Statement with respect to any offering of its securities
for
its own account or for the account of any holders of its securities (or by
the
Company and by security holders of the Company, including, without limitation,
pursuant to Section 2.2),
other
than (A) a registration of securities relating solely to an offering and
sale to employees or directors of the Company pursuant to any employee stock
plan or other employee benefit plan arrangement, (B) a registration on Form
S-4 or S-8 or any successor form to such forms, (C) an exchange offer or
offering of securities solely to the Company’s existing shareholders, (D)
a dividend reinvestment plan, or (E) solely in connection with a merger,
consolidation or non-capital raising bona
fide
business
transaction, then, as soon as practicable (but in no event less than ten
(10) business days prior to the proposed date of filing such Registration
Statement), the Company shall give written notice of such proposed filing to
all
holders of Registrable Securities, which notice shall describe the amount and
class of securities to be included in such offering, the intended method(s)
of
distribution, and the name of the proposed managing underwriter or underwriters,
if any, of the offering, and such notice shall offer the holders of such
Registrable Securities the opportunity to register such number of Registrable
Securities as each such holder may request in writing (an “Incidental
Registration”).
Subject to Section 2.3(b),
the
Company shall include in such Registration Statement all such Registrable
Securities requested to be included therein within five (5) business days
after the receipt by such holder of any such notice, on the same terms and
conditions as any similar securities of the Company. If at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to register or
to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, (x) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with
such
registration, and (y) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities for the
same
period as the delay in registering such other securities.
8
(ii)
If
the offering pursuant to an Incidental Registration is to be an Underwritten
Offering, then each holder making a request for its Registrable Securities
to be
included therein must, and the Company shall use its best efforts to make such
arrangements with the underwriters so that each such holder may, participate
in
such Underwritten Offering on the same terms and conditions as the Company
and
other Persons selling securities in such Underwritten Offering. If the offering
pursuant to such registration is to be on any other basis, then each holder
making a request for an Incidental Registration pursuant to this Section 2.3(a)
must
participate in such offering on such basis.
(iii)
Each holder of Registrable Securities shall be permitted to withdraw all or
part
of such holder’s Registrable Securities from an Incidental Registration at any
time;
(b)
Reduction
of Incidental Registration.
If the
managing underwriter or underwriters of any proposed Underwritten Offering
of a
class of securities included in an Incidental Registration (or in the case
of an
Incidental Registration not being underwritten, the Company) informs the holders
of Registrable Securities of any class sought to be included in such
registration in writing that, in its or their opinion, the total amount or
kind
of securities which such holders and any other Persons intend to include in
such
offering exceeds the number which can be sold in such offering without being
likely to have a significant adverse effect on the price, timing or distribution
of the class or classes of the securities offered or the market for the class
or
classes of securities offered or the Company’s common stock, then the securities
of each class to be included in such registration shall be allocated as follows:
(i)
if
the registration is undertaken for the Company’s account: (x) first, the
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Securities and (y) second, to the extent that the
Maximum Number of Securities has not been reached under the foregoing clause
(x), securities, if any, including the Registrable Securities, as to which
registration has been requested pursuant to written contractual incidental
registration rights of security holders (including this Agreement) that can
be
sold without exceeding the Maximum Number of Securities (pro
rata in
accordance with the number of shares or other securities which each such Person
has actually requested to be included in such registration);
(ii)
if
the registration is a demand registration undertaken by Persons with demand
rights pursuant to a written contractual arrangement other than this Agreement,
(w) first, securities for the account of the demanding Persons that can be
sold without exceeding the Maximum Number of Securities, (x) second, to the
extent that the Maximum Number of Securities has not been reached under the
foregoing clause (w), securities that the Company desires to sell and that
can
be sold without exceeding the Maximum Number of Securities, (y) third, to
the extent that the Maximum Number of Securities has not been reached under
the
foregoing clauses (w) and (x), securities (including the Registrable
Securities) as to which registration has been requested pursuant to a written
contractual incidental registration rights of security holders (including this
Agreement) that can be sold without exceeding the Maximum Number of Securities
(pro
rata
in
accordance with the number of shares or other securities which each such Person
has actually requested to be included in such registration), and
(z) fourth, to the extent that the Maximum Number of Securities have not
been reached under the foregoing clauses (w), (x) and (y), securities that
other security holders desire to sell without exceeding the Maximum Number
of
Securities.
9
2.4.
Registration Procedures
(a)
In
connection with the Company’s registration obligations in this Agreement, the
Company will, subject to the limitations set forth herein, use its reasonable
best efforts to effect any such registration so as to permit the sale of the
applicable Registrable Securities in accordance with the intended method or
methods of distribution thereof as expeditiously as reasonably practicable,
and
in connection therewith the Company will:
(i)
before filing a Registration Statement or prospectus, or any amendments or
supplements thereto and in connection therewith, furnish to the underwriter
or
underwriters, if any, and to the holders of the Registrable Securities included
in such registration, and such holders’ legal counsel, copies of all documents
prepared to be filed, which documents will be subject to the review of such
underwriters and such holders and their counsel and, except in the case of
an
Incidental Registration under Section 2.3,
will
not file any Registration Statement or prospectus or amendments or supplements
thereto to which a majority of such holders or the underwriter or underwriters,
if any, shall reasonably object;
(ii)
prepare and file with the SEC such amendments or supplements to the applicable
Registration Statement or prospectus as may be (A) reasonably requested by
any participating holder (to the extent such request relates to information
relating to such holder), (B) necessary to keep such registration effective
for the period of time required by this Agreement or (C) reasonably
requested by the holders of a majority of any class of the participating
Registrable Securities;
(iii)
notify the selling holders of Registrable Securities and the managing
underwriter or underwriters, if any, and (if requested) confirm such advice
in
writing, as soon as reasonably practicable after notice thereof is received
by
the Company (A) when the applicable Registration Statement or any amendment
thereto has been filed or becomes effective and when the applicable prospectus
or any amendment or supplement thereto has been filed, (B) of any written
comments by the SEC or any request by the SEC or any other federal or state
governmental authority for amendments or supplements to such Registration
Statement or prospectus or for additional information, (C) of the issuance
by the SEC or any other governmental agency or court of any stop order
suspending the effectiveness of such Registration Statement or any order
preventing or suspending the use of any preliminary or final prospectus or
the
initiation or threat of any proceedings for such purposes and (D) of the
receipt by the Company of any notification with respect to the suspension of
the
qualification of the Registrable Securities for offering or sale in any
jurisdiction or the initiation;
10
(iv)
promptly notify each selling holder of Registrable Securities and the managing
underwriter or underwriters, if any, when the Company becomes aware of the
happening of any event as a result of which the applicable Registration
Statement or prospectus (as then in effect) contains any untrue statement of
a
material fact or omits to state a material fact necessary to make the statements
therein (in the case of the prospectus and any preliminary prospectus, in light
of the circumstances under which they were made) not misleading or, if for
any
other reason it shall be necessary to amend or supplement such Registration
Statement or prospectus in order to comply with the Securities Act and, in
either case as promptly as reasonably practicable thereafter, prepare and file
with the SEC an amendment or supplement to such Registration Statement or
prospectus which will correct such statement or omission or effect such
compliance;
(v)
make
every reasonable effort to prevent, or obtain at the earliest possible moment
the withdrawal of, any stop order with respect to the applicable Registration
Statement or other order suspending the use of any preliminary or final
prospectus;
(vi)
promptly incorporate in a prospectus supplement or post-effective amendment
to
the applicable Registration Statement such information as the managing
underwriter or underwriters, if any, or the holders of a majority of the
Registrable Securities of the class being sold agree should be included therein
relating to the plan of distribution with respect to such Registrable
Securities; and make all required filings of such prospectus supplement or
post-effective amendment as soon as reasonably practicable after being notified
of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(vii)
furnish to each selling holder of Registrable Securities and each managing
underwriter, if any, without charge, as many conformed copies as such holder
or
managing underwriter may reasonably request of the applicable Registration
Statement;
(viii)
deliver to each selling holder of Registrable Securities and each managing
underwriter, if any, without charge, as many copies of the applicable prospectus
(including each preliminary prospectus) as such holder or managing underwriter
may reasonably request (its being understood that the Company consents to the
use of the prospectus by each of the selling holders of Registrable Securities
and the underwriter or underwriters, if any, in connection with the offering
and
sale of the Registrable Securities covered by the prospectus) and such other
documents as such selling holder or managing underwriter may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
holder or underwriter;
(ix)
on
or prior to the date on which the applicable Registration Statement is declared
effective, use its reasonable best efforts to register or qualify such
Registrable Securities for offer and sale under the securities or “Blue Sky”
laws of each state and other jurisdiction of the United States, as any such
selling holder or underwriter, if any, or their respective counsel reasonably
requests in writing, and do any and all other acts or things reasonably
necessary or advisable to keep such registration or qualification in effect
so
as to permit the commencement and continuance of sales and dealings in such
jurisdictions for as long as may be necessary to complete the distribution
of
the Registrable Securities covered by the Registration Statement; provided,
however,
that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would
subject it to taxation or general service of process in any such jurisdiction
where it is not then so subject;
11
(x)
cooperate with the selling holders of Registrable Securities and the managing
underwriter, underwriters or agent, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold
and
not bearing any restrictive legends;
(xi)
not
later than the effective date of the applicable Registration Statement, provide
a CUSIP number for all Registrable Securities and provide the applicable
transfer agent with printed certificates for the Registrable Securities which
certificates shall be in a form eligible for deposit with The Depository Trust
Company;
(xii)
obtain for delivery to the holders of each class of Registrable Securities
being
registered and to the underwriter or underwriters, if any, an opinion or
opinions from counsel for the Company dated the effective date of the
Registration Statement or, in the event of an Underwritten Offering, the date
of
the closing under the underwriting agreement, in customary form, scope and
substance, at a minimum to the effect that the Registration Statement has been
declared effective and that no stop order is in effect, which counsel and
opinions shall be reasonably satisfactory to a majority of the holders of each
such class and underwriter or underwriters, if any, and their respective
counsel;
(xiii)
in
the case of an Underwritten Offering, obtain for delivery to the Company and
the
underwriter or underwriters, if any, with copies to the holders of Registrable
Securities included in such registration, such cold comfort letter(s) from
the
Company’s independent registered public accounting firm in customary form and
covering such matters of the type customarily covered by cold comfort letters
as
the managing underwriter or underwriters reasonably request;
(xiv)
cooperate with each seller of Registrable Securities and each underwriter or
agent, if any, participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made
with the NASD;
(xv)
use
its reasonable best efforts to comply with all applicable rules and regulations
of the SEC and make generally available to its security holders, as soon as
reasonably practicable (but not more than 15 months) after the effective date
of
the applicable Registration Statement, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(xvi)
provide and cause to be maintained a transfer agent and registrar for all
Registrable Securities covered by the applicable Registration Statement from
and
after a date not later than the effective date of such Registration Statement;
(xvii)
cause all Registrable Securities of a class covered by the applicable
Registration Statement to be listed on each securities exchange on which any
of
the Company’s securities of such class are then listed or quoted and on each
inter-dealer quotation system on which any of the Company’s securities of such
class are then quoted;
12
(xviii)
make available upon reasonable notice at reasonable times and for reasonable
periods for inspection by a representative appointed by the holders of a
majority of the Registrable Securities of each class covered by the applicable
Registration Statement, by any managing underwriter or underwriters
participating in any disposition to be effected pursuant to such Registration
Statement and by any attorney, accountant or other agent retained by such
sellers or any such managing underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
all of the Company’s officers, directors and employees and the independent
public accountants who have certified its financial statements to make
themselves available to discuss the business of the Company and to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement as shall
be
necessary to enable them to exercise their due diligence responsibility (subject
to the entry by each party referred to in this clause (xviii) into
customary confidentiality agreements in a form reasonably acceptable to the
Company); and
(xix)
in
the case of an Underwritten Offering, cause senior executive officers of the
Company to participate in customary “road show” presentations that may be
reasonably requested by the managing underwriter in any such Underwritten
Offering and otherwise to facilitate, cooperate with, and participate in each
proposed offering contemplated herein and customary selling efforts related
thereto.
(b)
The
Company may require each selling holder of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such Securities and such other information
relating to such holder and its ownership of the applicable Registrable
Securities as the Company may from time to time reasonably request and as is
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement. Each holder of Registrable Securities
agrees to furnish such information to the Company and to cooperate with the
Company as necessary to enable the Company to comply with the provisions of
this
Agreement. The Company shall have the right to exclude any holder that does
not
comply with the preceding sentence from the applicable registration.
2.5.
Underwritten Offerings.
(a)
Underwriting
Agreements.
If
requested by the underwriters for any Underwritten Offering requested by holders
pursuant to Sections
2.1
or
2.2,
the
Company and the holders of Registrable Securities to be included therein shall
enter into an underwriting agreement with such underwriters, such agreement
to
be reasonably satisfactory in substance and form to the Company, the holders
of
a majority of each class of the Registrable Securities to be included in such
Underwritten Offering and the underwriters, and to contain such terms and
conditions as are generally prevailing in agreements of that type, including,
without limitation, indemnities no less favorable to the recipient thereof
than
those provided in Section 2.9.
The
holders of any Registrable Securities to be included in any Underwritten
Offering pursuant to Section 2.3
shall
enter into such an underwriting agreement at the request of the Company. All
of
the representations and warranties and the other agreements by and on the part
of the Company to and for the benefit of the underwriters included in any such
underwriting agreement shall also be made to and for the benefit of such
holders, and any or all of the conditions precedent to the obligations of the
underwriters under such underwriting agreement shall be conditions precedent
to
the obligations of such holders. No holder shall be required in any such
underwriting agreement to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such holder, such holder’s Registrable
Securities, such holder’s intended method of distribution and any other
representations required by law.
13
(b)
Price
and Underwriting Discounts.
In the
case of an Underwritten Offering requested by holders pursuant to Sections
2.1
or
2.2,
the
price, underwriting discount and other financial terms of the related
underwriting agreement for each class of Registrable Securities shall be
determined by the holders of a majority of such class of Registrable Securities.
In the case of any Underwritten Offering pursuant to Section 2.3,
such
price, discount and other terms shall be determined by the Company, subject
to
the right of the holders to withdraw their request to participate in the
registration pursuant to Section 2.3(a)(iii)
after
being advised of such price, discount and other terms.
(c)
Participation
in Underwritten Offerings.
No
Person may participate in an Underwritten Offering unless such Person
(i) agrees to sell such Person’s securities on the basis provided in the
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
2.6.
No Inconsistent Agreements; Additional Rights.
The
Company will not enter into, and is not currently a party to, any agreement
that
is inconsistent with the rights granted to the holders of Registrable Securities
by this Agreement.
14
2.7.
Obligation to Suspend Distribution. (a)
Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the happening
of
any events of the kind described in Sections
2.4(a)(iii)(C),
2.4(a)(iii)(D)(in
any
applicable state) or 2.4(a)(iv),
such
holder will discontinue disposition of its Registrable Securities pursuant
to
the Registration Statement, in the case of Section 2.4(a)(iv),
until
the holder receives copies of the supplemented or amended prospectus
contemplated by Section 2.4(a)(iv),
or in
any case until the holder is advised in writing by the Company that the use
of
the prospectus may be resumed, and receives copies of any additional or
supplemental filings that are incorporated by reference in the prospectus and,
if so directed by the Company, the holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
holder’s possession, of the prospectus covering such Registrable Securities that
are current at the time of the receipt of such notice. In the event that the
Company shall give any such notice in respect of a Demand Registration, the
period during which the applicable Registration Statement is required to be
maintained effective shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement either receives the copies of the supplemented or amended prospectus
contemplated by Section 2.4(a)(iv)
or is
advised in writing by the Company that the use of the prospectus may be resumed.
(b)
In
the case of a resale registration on Form S-3 pursuant to Section 2.1,
upon
any suspension by the Company, pursuant to a written xxxxxxx xxxxxxx compliance
program adopted by the Company’s board of directors, of the ability of all
“insiders” covered by such program to transact in the Company’s securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until the
restriction on the ability of “insiders” to transact in the Company’s securities
is removed.
2.8.
Registration Expenses. (a)
The
Company shall pay all of the expenses set forth in this paragraph (a) in
connection with a registration under this Agreement of Registrable Securities.
Such expenses are (i) all registration and filing fees, and any other fees
and expenses associated with filings required to be made with the SEC or the
NASD, (ii) all fees and expenses of compliance with state securities or
“Blue Sky” laws, (iii) all printing, duplicating, word processing,
messenger, telephone, facsimile and delivery expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses),
(iv) all fees and disbursements of counsel for the Company and of all
independent certified public accountants of the Company, (v) Securities Act
liability insurance or similar insurance if the Company so desires and
(vi) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange or the quotation of the
Registrable Securities on any inter-dealer quotation system. In addition, in
all
cases the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any audit and the fees and expenses
of any other Persons retained by the Company, including any special experts.
In
addition, the Company shall pay all reasonable fees and disbursements not to
exceed $200,000 of one law firm or other counsel selected by the holders of
a
majority of the Registrable Securities being registered.
15
(b)
The
Company shall not be required to pay any other costs or expenses in the course
of the transactions contemplated hereby, including underwriting discounts and
commissions and transfer taxes attributable to the sale of Registrable
Securities and the fees and expenses of any counsel to any holder of Registrable
Securities other than as provided pursuant to the last sentence of the preceding
paragraph (a), or of counsel to the underwriters.
2.9.
Indemnification.
(a)
Indemnification
by the Company.
The
Company agrees to indemnify and hold harmless, to the full extent permitted
by
law, each holder of Registrable Securities and their respective officers,
directors, employees, advisors and agents and each Person who controls, is
controlled by, or is under common control with (within the meaning of the
Securities Act) such Persons from and against any and all losses, claims,
damages, liabilities (or actions, proceedings or settlements in respect thereof,
whether or not such indemnified party is a party thereto) and expenses
(including reasonable costs of investigation and legal expenses), joint or
several (each, a “Loss”
and
collectively “Losses”),
arising out of or based upon (i) any untrue or alleged untrue statement of
a material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act (including
any
final, preliminary or summary prospectus contained therein or any amendment
thereof or supplement thereto or any documents incorporated by reference therein
or otherwise incident thereto), (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make
the statements therein (in the case of a prospectus or preliminary prospectus,
in light of the circumstances under which they were made) not misleading or
(iii) any violation by the Company of the Securities Act in connection with
a
Registration Statement; provided,
however,
that
the Company shall not be liable to any indemnified party in any such case to
the
extent that any such Loss arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission made in any such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by such holder expressly for use in the
preparation thereof; and provided,
further,
that
the Company will not be liable to any indemnified party in any case to the
extent that any such Loss arises out of or is based upon any untrue statement
or
alleged untrue statement or omission or alleged omission made in any final,
preliminary or summary prospectus if such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in an amendment or
supplement to such prospectus which has been made available to the holders
a
reasonable time prior to any sale of the Registrable Securities and the relevant
holder of Registrable Securities fails to deliver such prospectus as so amended
or supplemented, if such delivery is required under applicable law or the
applicable rules of any securities exchange, prior to or concurrently with
the
sales of the Registrable Securities to the Person asserting such loss, claim,
damage, liability or expense. This indemnity shall be in addition to any
liability the Company may otherwise have. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
indemnified party.
16
(b)
Indemnification
by the Holders.
Each
selling holder of Registrable Securities agrees (severally and not jointly)
to
indemnify and hold harmless, to the full extent permitted by law, the Company,
its directors and officers and each Person who controls the Company (within
the
meaning of the Securities Act) from and against any Losses resulting from any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement under which such Registrable
Securities were registered under the Securities Act (including any final,
preliminary or summary prospectus contained therein or any amendment thereof
or
supplement thereto or any documents incorporated by reference therein), or
necessary to make the statements therein (in the case of a prospectus or
preliminary prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission had been contained in any information furnished in writing
by such selling holder to the Company specifically for inclusion in such
Registration Statement and was not corrected in a subsequent writing prior
to or
concurrently with the sale of the Registrable Securities to the Person asserting
such loss, claim, damage, liability or expense. This indemnity shall be in
addition to any liability such holder may otherwise have; provided
that the
obligations of the selling holder under this Section
2.9(b)
shall
not apply to amounts paid in settlement of any such Losses if such settlement
is
effected without the consent of such holder (such consent not to be unreasonably
withheld). Such indemnity shall remain in full force and effect regardless
of
any investigation made by or on behalf of the Company or any indemnified party.
In no event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder under the sale of the Registrable Securities giving rise to
such
indemnification obligation.
(c)
Conduct
of Indemnification Proceedings.
Any
Person entitled to indemnification hereunder will (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided,
however,
that
any delay or failure to so notify the indemnifying party shall relieve the
indemnifying party of its obligations hereunder only to the extent, if at all,
that it is actually and materially prejudiced by reason of such delay or
failure) and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided,
however,
that
any Person entitled to indemnification hereunder shall have the right to select
and employ separate counsel and to participate in the defense of such claim,
but
the fees and expenses of such counsel shall be at the expense of such Person
unless (A) the indemnifying party has agreed in writing to pay such fees or
expenses, (B) the indemnifying party shall have failed to assume the
defense of such claim within a reasonable time after having received notice
of
such claim from the Person entitled to indemnification hereunder and to employ
counsel reasonably satisfactory to such Person, (C) in the reasonable
judgment of any such Person, based upon advice of its counsel, a conflict of
interest exists between such Person and the indemnifying party with respect
to
such claims or (D) based on advice of counsel, the indemnified party has
reasonably concluded that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available
to
the indemnifying party such that the indemnifying party’s assumption of defense
of the indemnified party would be likely to adversely affect the defense of
the
indemnified party (in which case, if the Person notifies the indemnifying party
in writing that such Person elects to employ separate counsel at the expense
of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such Person). If such defense
is
not assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent, but such
consent may not be unreasonably withheld; provided,
however,
that an
indemnifying party shall not be required to consent to any settlement involving
the imposition of equitable remedies or involving the imposition of any material
obligations on such indemnifying party other than financial obligations for
which such indemnified party will be indemnified hereunder. If the indemnifying
party assumes the defense, the indemnifying party shall have the right to settle
such action without the consent of the indemnified party; provided,
however,
that
the indemnifying party shall be required to obtain such consent (which consent
shall not be unreasonably withheld) if the settlement includes any admission
of
wrongdoing on the part of the indemnified party or any restriction on the
indemnified party or its officers or directors. No indemnifying party shall
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to each indemnified party of an unconditional release from all liability in
respect to such claim or litigation. The indemnifying party or parties shall
not, in connection with any proceeding or related proceedings, be liable for
the
reasonable fees, disbursements and other charges of more than one separate
firm
at any one time for all such indemnified party or parties unless (x) the
employment of more than one counsel has been authorized in writing by the
indemnifying party or parties, (y) a conflict or potential conflict exists
or may exist (based on advice of counsel to an indemnified party) between such
indemnified party and the other indemnified parties or (z) based on advice
of counsel, an indemnified party has reasonably concluded that there may be
legal defenses available to it that are different from or in addition to those
available to the other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable fees and expenses
of
such additional counsel or counsels.
17
(d)
Contribution.
If for
any reason the indemnification provided for in the paragraphs (a) and
(b) of this Section 2.9
is
unavailable to an indemnified party or insufficient to hold it harmless as
contemplated by paragraphs (a) and (b) of this Section 2.9,
then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
the
indemnified party on the other. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or the indemnified
party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
Notwithstanding anything in this Section 2.9(d)
to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 2.9(d)
to
contribute any amount in excess of the amount by which the net proceeds received
by such indemnifying party from the sale of Registrable Securities in the
offering to which the Losses of the indemnified parties relate exceeds the
amount of any damages which such indemnifying party has otherwise been required
to pay by reason of such untrue statement or omission. The parties hereto agree
that it would not be just and equitable if contribution pursuant to this
Section 2.9(d)
were
determined by pro
rata
allocation or by any other method of allocation that does not take account
of
the equitable considerations referred to in the immediately preceding paragraph.
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. If
indemnification is available under this Section 2.9,
the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections
2.9(a)
and
2.9(b)
hereof
without regard to the relative fault of said indemnifying parties or indemnified
party.
18
2.10.
Rule 144. The
Company covenants that it shall use its best efforts to file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable
such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
SECTION 3.
MISCELLANEOUS
3.1.
Term.
This
Agreement shall terminate upon earlier of (i) the tenth anniversary of the
date of this Agreement or (ii) the date as of which all of the Registrable
Securities have been sold pursuant to a Registration Statement (but in no event
prior to the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder). The provisions of Section 2.9
and
Section 2.10
shall
survive any termination.
3.2.
Notices.
All
notices, other communications or documents provided for or permitted to be
given
hereunder, shall be made in writing and shall be given either personally by
hand-delivery, by facsimile transmission, by mailing the same in a sealed
envelope, registered first-class mail, postage prepaid, return receipt
requested, or by air courier guaranteeing overnight delivery:
(a)
if to
the Company to:
000
Xxxx
Xxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Chief Executive Officer
Fax:
(000) 000-0000
with
a
copy to:
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx
Xxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Check, Esq.
Fax:
(000) 000-0000
19
(b)
if to
Occidental, to:
Occidental
Petroleum Investment Co.
00000
Xxxxxxxx Xxxxxxxxx
Xxx
Xxxxxxx, XX 00000
Each
holder, by written notice given to the Company in accordance with this
Section 3.2,
may
change the address to which notices, other communications or documents are
to be
sent to such holder. All notices, other communications or documents shall be
deemed to have been duly given: (i) at the time delivered by hand, if
personally delivered; (ii) when receipt is acknowledged in writing by
addressee, if by facsimile transmission; (iii) five business days after
having been deposited in the mail, postage prepaid, if mailed by first class
mail; or (iv) on the first business day with respect to which a reputable
air courier guarantees delivery; provided,
however,
that
notices of a change of address shall be effective only upon receipt.
3.3.
Successors, Assigns and Transferees.
(a)
The
registration rights of any holder under this Agreement with respect to any
Registrable Securities may be transferred and assigned, provided,
however,
that no
such assignment shall be binding upon or obligate the Company to any such
assignee unless and until the Company shall have received notice of such
assignment as herein provided and a written agreement of the assignee to be
bound by the provisions of this Agreement. Any transfer or assignment made
other
than as provided in the first sentence of this Section 3.3
shall be
null and void.
(b)
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and permitted assigns.
3.4.
Governing
Law; Consent to Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN
THAT
STATE. To the fullest extent permitted by applicable law, each party hereto
(i) agrees that any claim, action or proceeding by such party seeking any
relief whatsoever arising out of, or in connection with, this Agreement or
the
transactions contemplated hereby shall be brought only in the United States
District Court for the Central District of California and in any California
State court located in Los Angeles County and not in any other State or Federal
court in the United States of America or any court in any other country,
(ii) agrees to submit to the exclusive jurisdiction of such courts located
in the State of California for purposes of all legal proceedings arising out
of,
or in connection with, this Agreement or the transactions contemplated hereby
and (iii) irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
20
3.5.
Headings.
The
section and paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
this Agreement.
3.6.
Severability.
Whenever
possible, each provision or portion of any provision of this Agreement will
be
interpreted in such manner as to be effective and valid under applicable law
but
if any provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law in
any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
agreement will be reformed, construed and enforced in such jurisdiction as
if
such invalid, illegal or unenforceable provision or portion of any provision
had
never been contained therein.
3.7.
Amendment; Waiver.
(a)
This
Agreement may not be amended or modified and waivers and consents to departures
from the provisions hereof may not be given, except by an instrument or
instruments in writing making specific reference to this Agreement and signed
by
the Company and the holders of a majority of Registrable Securities of each
class then outstanding. Each holder of any Registrable Securities at the time
or
thereafter outstanding shall be bound by any amendment, modification, waiver
or
consent authorized by this Section 3.7(a),
whether
or not such Registrable Securities shall have been marked accordingly.
(b)
The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a further or continuing waiver of such breach
or
as a waiver of any other or subsequent breach. Except as otherwise expressly
provided herein, no failure on the part of any party to exercise, and no delay
in exercising, any right, power or remedy hereunder, or otherwise available
in
respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
3.8.
Counterparts.
This
Agreement may be executed in any number of separate 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 together shall constitute one and
the
same agreement.
21
IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
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Address:
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000
Xxxx Xxxxx Xxxx
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Xxxxx
000
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Xxxxxxx,
XX 00000
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OCCIDENTAL
PETROLEUM INVESTMENT CO.
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By:
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Name:
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Title:
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00000
Xxxxxxxx Xxxx.
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Xxx
Xxxxxxx, XX 00000
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22
