REGISTRATION RIGHTS AGREEMENT
Exhibit 99.2
Execution Version
This REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of December 22, 2010, is by and
among Crimson Exploration Inc., a Delaware limited corporation (the “Company”), and America Capital
Energy Corporation, a New York corporation (“ACEC”).
RECITALS
WHEREAS, pursuant to that certain Subscription Agreement (the “Subscription Agreement”), dated
September 24, 2010 and to be effective on the terms set forth therein, the Company has sold to ACEC
and ACEC has purchased from the Company 4,250,000 shares (the “Common Shares”) of the Company’s
common stock, par value US$0.001 (“Common Stock”), and an option (the “Option”) to acquire
1,750,000 shares of Series I Convertible Preferred Stock, par value US$0.01 (the “Preferred
Shares”) pursuant to and on the terms set forth in that certain Option Agreement, dated October 25,
2010;
WHEREAS,
ACEC has delivered valid notice of exercise of the Option; and
WHEREAS, the parties
desire to set forth their agreement with respect to certain rights of ACEC to the registration of
the Common Shares and the shares of Common Stock issuable upon conversion of the Preferred Shares
(collectively, such Common Stock is referred to as the “Shares”) with the Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”).
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS AND CONSTRUCTION
DEFINITIONS AND CONSTRUCTION
1.1 Definitions. Capitalized terms listed in this Section 1.1 but not defined
elsewhere in the body of this Agreement shall have the meanings ascribed to them in this
Section 1.1. Capitalized terms defined elsewhere the body of this Agreement are listed in
this Section 1.1 with reference to the location of the definitions of such terms in the
body of this Agreement.
(a) “ACEC” is defined in the preamble.
(b) “Affiliate” means, when used with respect to a specified Person, any Person which (i)
directly or indirectly Controls, is Controlled by or is Under Common Control with such specified
Person, (ii) is an officer, director, general partner, trustee or manager of such specified Person,
or of a Person described in clause (i) of this definition.
(c) “Agreement” is defined in the preamble.
(d) “Board” means the Board of Directors of the Company.
(e) “Claim” is defined in Section 2.6(a).
(f) “Common Shares” is defined in the recitals.
(g) “Common Stock” is defined in the recitals.
(h) “Company” is defined in the preamble.
(i) “Control,” including the correlative terms “Controlling,” “Controlled by” and “Under
Common Control with”, means possession, directly or indirectly (through one or more
intermediaries), of the power to direct or cause the direction of management or policies (whether
through ownership of securities or any partnership or other ownership interest, by contract or
otherwise) of a Person.
(j) “Demand Request” is defined in Section 2.1(a).
(k) “Effective Date” is defined in Section 2.3.
(l) “Equity Interests” means (i) capital stock, member interests, partnership interests, other
equity interests, rights to profits or revenue and any other similar interest in any Person, (ii)
any security or other interest convertible into or exchangeable or exercisable for any of the
foregoing, whether at the time of issuance or upon the passage of time or the occurrence of some
future event, and (iii) any warrant, option or other right (contingent or otherwise) to acquire any
of the foregoing.
(m) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(n) “Holder” means ACEC and its permitted transferees hereunder; provided, however, that for
the avoidance of doubt to the extent a Person that would otherwise be a permitted transferee
hereunder does not succeed to the rights and benefits of particular provisions hereof in accordance
with the terms and conditions of this Agreement, such Person shall not be considered a Holder for
the purposes of such provisions, or with respect to the amendment or waiver of such provisions.
(o) “Holder Indemnified Parties” is defined in Section 2.6(a).
(p) “Indemnified Party” is defined in Section 2.6(c).
(q) “Indemnifying Party” is defined in Section 2.6(c).
(r) “Inspector” is defined in Section 2.4(a)(ii).
(s) “Lock-Up Period” is defined in Section 2.10.
(t) “Losses” is defined in Section 2.6(a).
(u) “Participating Holders” means Holders participating, or electing to participate, in an
offering of Registrable Securities.
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(v) “Person” means any natural person, corporation, limited partnership, general partnership,
limited liability company, joint stock company, joint venture, association, company, estate, trust,
bank trust company, land trust, business trust, or other organization, whether or not a legal
entity, custodian, trustee-executor, administrator, nominee or entity in a representative capacity
and any government or agency or political subdivision thereof.
(w) “Preferred Shares” is defined in the recitals.
(x) “Proposed Registration” is defined in Section 2.2(a).
(y) “Registrable Securities” means any of the Shares held by any Holder including any shares
issued, by virtue of the effect of antidilution provisions or combination, merger, consolidation or
other similar event; provided, however, that the Shares that are considered to be Registrable
Securities shall cease to be Registrable Securities upon the earliest to occur of (i) the first
time at which both (x) ACEC, together with its Affiliates, ceases to beneficially own (within the
meaning of Section 13(d) of the Exchange Act and the rules promulgated thereunder) 10% or more of
the total issued and outstanding shares of the Common Stock and (y) no officer or director of ACEC
or an Affiliate of ACEC serves as a director on the Board, (ii) the sale thereof pursuant to an
effective registration statement, (iii) the sale thereof pursuant to Rule 144 (or successor rule)
under the Securities Act or (iv) the time at which such securities cease to be outstanding;
provided further, however, that to the extent any of the Shares would be considered Registrable
Securities hereunder but for the fact that a transferee does not succeed to the rights and benefits
of particular provisions hereof in accordance with the terms and conditions of this Agreement, such
securities shall not be considered Registrable Securities for the purposes of such provisions, or
with respect to the amendment or waiver of such provisions.
(z) “Registration Expenses” means all expenses (other than underwriting discounts and
commissions) arising from or incident to the performance of, or compliance with, Article
II, including, (i) SEC, stock exchange and other registration and filing fees, (ii) all fees
and expenses incurred in connection with complying with any securities or blue sky laws (including,
fees, charges and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses, (iv) the fees,
charges and disbursements of counsel to the Company and each Participating Holder and of the
Company’s independent public accountants and any other accounting and legal fees, charges and
expenses incurred by the Company (including, any expenses arising from any special audits or
“comfort letters” required in connection with or incident to any registration), (v) the fees,
charges and disbursements of any special experts retained by the Company in connection with any
registration pursuant to the terms of this Agreement, (vi) all internal expenses of the Company
(including, all salaries and expenses of its officers and employees performing legal or accounting
duties), (vii) the fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange, including Nasdaq and (viii) Securities Act liability
insurance (if the Company elects to obtain such insurance), regardless of whether the Registration
Statement filed in connection with such registration is declared effective; provided that
Registration Expenses shall not include Selling Expenses.
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(aa) “Registration Statement” means a registration statement of the Company filed with the SEC
on the appropriate form pursuant to the Securities Act which covers shares of Registrable
Securities pursuant to the provisions of this Agreement and all amendments and supplements to the
Registration Statement, including post-effective amendments, in each case including the prospectus
contained therein, all exhibits thereto and all materials incorporated by reference therein.
(bb) “Requesting
Holders” is defined in Section 2.1(a).
(cc) “Request
Notice” is defined in Section 2.1(a).
(dd) “SEC” is defined in the recitals.
(ee) “Securities Act” is defined in the recitals.
(ff) “Selling Expenses” means the underwriting fees, discounts, selling commissions and stock
transfer taxes applicable to all any securities registered by the Participating Holders or the
Company, as the case may be.
(gg) “Shareholders Agreement” means that certain Shareholders Rights Agreement, dated February
28, 2005, by and between the Company (as successor to GulfWest Energy, Inc.) and OCM GW Holdings,
LLC, as amended.
(hh) “Shares” is defined in the recitals.
(ii) “Subscription Agreement” is defined in the recitals.
(jj) “Subsidiary” means, with respect to any Person, (i) any corporation, partnership, limited
liability company or other entity in which a majority of the Equity Interests having voting power
under ordinary circumstances to elect at least a majority of the board of directors or other
Persons performing similar functions are at the time owned or Controlled, directly or indirectly,
by such Person or by one or more of the other direct or indirect Subsidiaries of such Person or a
combination thereof (regardless of whether, at the time, Equity Interests of any other class or
classes shall have, or might have, voting power by reason of the occurrence of any contingency),
(ii) a partnership in which such Person or any direct or indirect Subsidiary of such Person is a
general partner or (iii) a limited liability company in which such Person or any direct or indirect
Subsidiary of such Person is a managing member or manager.
(kk) “Valid Business Reason” is defined in Section 2.1(e)(i).
1.2 Construction. In this Agreement, unless a clear contrary intention appears: (a)
pronouns in the masculine, feminine and neuter genders shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural and vice versa; (b)
the term “including” shall be construed to be expansive rather than limiting in nature and to mean
“including, without limitation;” (c) the word “or” is inclusive; (d) references to Sections refer
to Sections of this Agreement; (e) the words “this Agreement,” “herein,” “hereof,” “hereby,”
“hereunder” and words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited; and (f) references in any Section or
definition to any clause means such clause of such Section or definition. The section
headings contained in this Agreement are inserted for convenience only and shall not affect in any
way the meaning or interpretation of this Agreement.
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ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
2.1 Demand Registration.
(a) Request by Holders. At any time on or after the Effective Date, if the Company
receives at any time a written request from Holders owning at least 50% of the Registrable
Securities (the “Requesting Holders”) that the Company register Registrable Securities held by
Requesting Holders (a “Demand Request”), then the Company shall, within ten days after receipt of
such Demand Request, give written notice of such request (“Request Notice”) to all Holders. Each
Demand Request shall (x) specify the number of Registrable Securities that the Requesting Holders
intend to sell or dispose of, (y) state the intended method or methods of sale or disposition of
the Registrable Securities and (z) specify the expected price range (net of underwriting discounts
and commissions) acceptable to the Requesting Holders to be received for such Registrable
Securities. Following receipt of a Demand Request, the Company shall:
(i) cause to be filed, as soon as practicable, but within 60 days of the
date of delivery to the Company of the Demand Request, a Registration Statement covering
such Registrable Securities which the Company has been so requested to register by the
Requesting Holders and other Holders who request to the Company that their Registrable
Securities be registered within 20 days of the mailing of the Request Notice, providing for
the registration under the Securities Act of such Registrable Securities to the extent
necessary to permit the disposition of such Registrable Securities in accordance with the
intended method of distribution specified in such Demand Request, together with, subject to
Section 2.1(d), any additional shares of Common Stock to be issued by the Company or
owned by any other holder that may be entitled to participate in such registration, that the
Company or such holder may desire to sell in connection with the proposed distribution;
(ii) use its reasonable best efforts to have such Registration Statement declared
effective by the SEC as soon as practicable thereafter; and
(iii) refrain from filing any other Registration Statements, other than a Registration
Statement on Form S-4 or S-8 (or similar or successor forms), with respect to any other
securities of the Company until such date which is 180 days following effectiveness of the
Registration Statement filed in response to the Demand Request.
(b) Effective Registration Statement. A registration requested pursuant to this
Section 2.1 shall not be deemed to have been effected: (i) unless a Registration Statement
with respect thereto has become effective and remained effective in compliance with the provisions
of the Securities Act with respect to the disposition of all Registrable Securities covered by such
Registration Statement
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until
such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Holders thereof set forth in
such Registration Statement; (ii) if, after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court and has not thereafter become effective, or if the offering of
Registrable Securities is not consummated for any reason, including if the underwriters of an
underwritten public offering advise the Participating Holders that the Registrable Securities
cannot be sold at a net price per share equal to or above the net price disclosed in the
preliminary prospectus; (iii) if the conditions to closing specified in the underwriting agreement,
if any, entered into in connection with such registration are not satisfied or waived; or (iv) if
the number of Registrable Securities covered by the Registration Statement is reduced to fewer than
50% of the number of Registrable Securities set forth in the Demand Request as a result of the
operation of Section 2.1(d). Following the date on which a Registration Statement is
declared effective by the SEC pursuant to a Demand Request made in accordance with this Section
2.1, the Company shall not take any affirmative action to withdraw or suspend or terminate the
effectiveness of such Registration Statement until such time as all of the Registrable Securities
covered by such Registration Statement have been disposed of; provided, however, that nothing in
this Section 2.1 shall be construed as an affirmative obligation on the part of the Company
to maintain the effectiveness of any Registration Statement (including, but not limited to, any
Registration Statement on Form S-3) for any period of time following the date on which such
Registration Statement is first declared effective by the SEC.
(c) Selection of Underwriters. If the Company is required to file a Registration
Statement covering any Registrable Securities of any Participating Holders pursuant to Section
2.1(a) and the proposed public offering is to be an underwritten public offering, the managing
underwriter shall be one or more nationally recognized investment banks selected by a majority in
interest of the Participating Holders and reasonably acceptable to the Company.
(d) Priority for Demand Registration. Notwithstanding any other provision of this
Section 2.1, if the managing underwriter of an underwritten public offering determines and
advises the Participating Holders and the Company that the inclusion of all securities proposed to
be included by the Company and any other holders of securities to be registered in the underwritten
public offering would materially and adversely interfere with the successful marketing of the
Participating Holders’ Registrable Securities, then the Company and other holders of securities to
be registered shall not include any securities in excess of the amount, if any, of securities which
the managing underwriter of such underwritten public offering shall reasonably and in good faith
agree in writing to include in such public offering in addition to the amount of Registrable
Securities to be registered for the Participating Holders. Notwithstanding the foregoing, nothing
in this Section 2.1(d) shall prevent, modify or limit any priority of registration rights of other
holders of securities proposed to be registered, if any, pursuant to the Shareholders Agreement.
The Company will be obligated to include in such Registration Statement, as to each Participating
Holder, only a portion of the Registrable Securities such Participating Holder has requested be
registered equal to the ratio which such Participating Holder’s requested Registrable Securities
bears to the total number of Registrable Securities requested to be included in such Registration
Statement by all Participating Holders who have requested that their Registrable Securities be
included in such Registration Statement. Pursuant
to the foregoing provision, the securities to be included in a registration requested by the
Requesting Holders pursuant to Section 2.1 shall be allocated:
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(i) first, to any shareholders of the Company requesting registration of
securities of the Company pursuant to the Shareholders Agreement;
(ii) second, to the Participating Holders;
(iii) third, to the Company; and
(iv) fourth, to any other shareholders of the Company requesting registration
of securities of the Company.
(e) Limitations on Demand Registrations.
(i) The Company may delay making a filing of a Registration Statement or taking
action in connection therewith by not more than 60 days if the Company provides a
written certificate signed by the President and Chief Executive Officer of the
Company to the Participating Holders, prior to the time it would otherwise have been
required to file such Registration Statement or take such action pursuant to this
Section 2.1, stating that the Board has determined in good faith that the
filing of such Registration Statement would be seriously detrimental to the Company
or would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction (collectively, a “Valid Business
Reason”) and that it is therefore essential to defer the filing of the Registration
Statement; provided, however, that such right to delay a Demand Request shall be
exercised by the Company not more than once in any 12-month period.
(ii) The Company shall only be obligated to effect two Demand Requests pursuant
to this Section 2.1.
(iii) The Company shall not be required to comply with a Demand Request unless
the Registrable Securities to which such Demand Request relates would be equal to or
exceed 20% of the Registrable Securities.
(iv) Without the express consent of the Company, no sale or other disposition
of Registrable Securities or other securities of the Company, held by Holders of
Registrable Securities shall be made pursuant to a Registration Statement or
otherwise during any blackout period during which sales of securities by executive
officers and directors of the Company are restricted by Company policy or directive
as a result of material information or developments known to the Company and not yet
known to the public, including without limitation during any pendency of the release
of material information concerning earnings or operational information.
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(f) Cancellation of Registration. A majority in interest of the Participating Holders
may cancel a proposed registration of Registrable Securities pursuant to this Section 2.1
when, (i) in their discretion, market conditions are so unfavorable as to be seriously detrimental
to an offering pursuant to such registration or (ii) the request for cancellation is based upon
material adverse information relating to the Company that is different from the information known
to the Participating Holders at the time of the Demand Request. Such cancellation of a registration
shall not be counted as one of the two Demand Requests and notwithstanding anything to the contrary
in this Agreement, the Company shall be responsible for the expenses of the Participating Holders
incurred in connection with the registration before any cancellation pursuant to clause (ii) of the
foregoing sentence.
2.2 Piggyback Registrations.
(a) Right to Include Registrable Securities. If at any time on or after the Effective
Date the Company proposes for any reason to register any of its Common Stock under the Securities
Act, either for its own account or for the account of a securityholder of the Company other than
pursuant to a Registration Statement on Forms S-4 or S-8 (or similar or successor forms) (a
“Proposed Registration”), the Company shall promptly give written notice of such Proposed
Registration to all of the Holders (which notice shall be given not less than 20 days before the
expected effective date of the Company’s Registration Statement) and shall offer such Holders the
right to request inclusion of any of such Holder’s Registrable Securities in the Proposed
Registration. No registration pursuant to this Section 2.2 shall relieve the Company of its
obligation to register Registrable Securities pursuant to a Demand Request, as contemplated by
Section 2.1. The rights to piggyback registration may be exercised an unlimited number of
occasions.
(b) Piggyback Procedure. Each Holder shall have ten days from the date of receipt of
the Company’s notice referred to in Section 2.2(a) to deliver to the Company a written
request specifying the number of Registrable Securities such Holder intends to sell and such
Holder’s intended method of disposition. Any Holder may withdraw such Holder’s request for
inclusion of such Holder’s Registrable Securities in any Registration Statement pursuant to this
Section 2.2 by giving written notice to the Company of such withdrawal; provided, however,
that the Company may ignore a notice of withdrawal made within 24 hours of the time the
Registration Statement is to become effective. Subject to Section 2.2(d), the Company shall
use its reasonable best efforts to include in such Registration Statement all such Registrable
Securities so requested to be included therein; provided, however, that the Company may at any time
withdraw or cease proceeding with any such Proposed Registration if it withdraws or ceases
proceeding with the registration of all other securities originally proposed to be registered. If
the Proposed Registration by the Company is, in whole or in part, an underwritten public offering
of securities of the Company, any request under this Section 2.2(b) shall specify that the
Registrable Securities be included in the underwriting on the same terms and conditions as the
shares, if any, otherwise being sold through underwriters under such registration.
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(c) Selection of Underwriters. The managing underwriter for any Proposed Registration
that involves an underwritten public offering shall be one or more nationally
recognized investment banks selected by the Company or such other securityholder of the
Company participating in the Proposed Registration.
(d) Priority for Piggyback Registration. Notwithstanding any other provision of this
Article II, if the managing underwriter of an underwritten public offering determines and
advises the Company and the Participating Holders in writing that the inclusion of all Registrable
Securities proposed to be included by the Participating Holders in the underwritten public offering
would materially and adversely interfere with the successful marketing of the Company’s securities,
then the Participating Holders may not include any Registrable Securities in excess of the amount,
if any, of Registrable Securities which the managing underwriter of such underwritten public
offering shall reasonably and in good faith agree in writing to include in such public offering in
addition to the amount of securities to be registered for the Company. The Company must include in
such Registration Statement, as to each Participating Holder, only a portion of the Registrable
Securities such Participating Holder has requested be registered equal to the ratio which such
Participating Holder’s requested Registrable Securities bears to the total number of Registrable
Securities requested to be included in such Registration Statement by all Participating Holders who
have requested that their Registrable Securities be included in such Registration Statement.
Pursuant to the foregoing provision, the securities to be included in a registration initiated by
the Company shall be allocated:
(i) first, to the Company;
(ii) second, to any shareholders of the Company requesting registration of
securities of the Company pursuant to the Shareholders Agreement;
(iii) third, to the Participating Holders; and
(iv) fourth, to any other shareholders of the Company requesting registration
of securities of the Company.
If as a result of the provisions of this Section 2.2(d), any Participating Holder may
not include all of its Registrable Securities in a registration that such Holder has requested to
be so included, such Participating Holder may withdraw such Participating Holder’s request to
include Registrable Securities in such Registration Statement.
(e) The limitations of Section 2.1(e)(iv) shall also apply to any sales or other
dispositions of Registrable Securities or other securities of the Company pursuant to any
Registration Statement filed under this Section 2.2.
2.3 Effectiveness of Registration Rights. Notwithstanding anything to the contrary in
this Agreement, the registration rights of the Holders set forth in Section 2.1 and
Section 2.2 shall not be effective until the date that is one year following the Closing
(as defined in the Subscription Agreement) (such date, the “Effective Date”). For the avoidance of
doubt, nothing in this Agreement shall be construed to create any obligation on the part of the
Company to effect the registration of any of the Shares prior to the Effective Date.
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2.4 Registration Procedures.
(a) Obligations of the Company. The Company shall use its reasonable best efforts to
effect the registration and sale of the Registrable Securities in accordance with the intended
method of distribution thereof as promptly as possible, and in connection with any such request,
the Company shall:
(i) Preparation of Registration Statement; Effectiveness. Prepare and file
with the SEC a Registration Statement (in any event not later than 60 days after
receipt of a Demand Request to file a Registration Statement with respect to
Registrable Securities) on any form on which the Company then qualifies, which
counsel for the Company shall deem appropriate and pursuant to which such offering
may be made in accordance with the intended method of distribution thereof (except
that the Registration Statement shall contain such information as may reasonably be
requested for marketing or other purposes by the managing underwriter), and use its
reasonable best efforts to cause any registration required hereunder to become
effective as soon as practicable after the initial filing thereof and remain
effective until all Registrable Securities have been sold in accordance with the
methods of distribution set forth in the Registration Statement;
(ii) Review of Registration Statement. Provide any Participating Holder, any
underwriter participating in any disposition pursuant to the Registration Statement,
and any attorney, accountant or other agent retained by any Participating Holder or
underwriter (each, an “Inspector” and, collectively, the “Inspectors”), the
opportunity to review and comment upon the Registration Statement, each prospectus
included therein or filed with the SEC and each amendment or supplement thereto;
(iii) Due Diligence. For a reasonable period prior to the filing of the
Registration Statement pursuant to this Agreement, make available for inspection and
copying by the Inspectors, such financial and other information and books and
records, pertinent corporate documents and properties of the Company and its
subsidiaries and cause the officers, directors, employees, counsel and independent
certified public accountants of the Company and its subsidiaries to respond to such
inquiries and to supply all information reasonably requested by any such Inspector
in connection with the Registration Statement, as shall be reasonably necessary to
conduct a reasonable investigation within the meaning of the Securities Act;
provided that such Inspectors shall be required to enter into a confidentiality
agreement reasonably acceptable to the Company as a condition to the Company making
available such information;
(iv) General Notification. Promptly notify in writing the Participating
Holders, the sales or placement agent, if any, therefor and the managing underwriter
of the securities being sold, (A) when the Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect
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to
any the Registration Statement or any post-effective amendment, when the same has become effective,
(B) when the SEC notifies the Company whether there will be a “review” of the
Registration Statement (C) of any comments (oral or written) by the SEC and by the
blue sky or securities commissioner or regulator of any state with respect thereto
and (D) of any request by the SEC for any amendments or supplements to the
Registration Statement or the prospectus or for additional information;
(v) 10b-5 Notification. Promptly notify in writing the Participating Holders,
the sales or placement agent, if any, therefor and the managing underwriter of the
securities being sold pursuant to the Registration Statement at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
upon discovery that, or upon the happening of any event as a result of which, any
prospectus included in the Registration Statement (or amendment or supplement
thereto) contains 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 light of the circumstances under which they were made, and
the Company shall promptly prepare a supplement or amendment to such prospectus and
file it with the SEC (in any event no later than ten days following notice of the
occurrence of such event to each Participating Holder, the sales or placement agent
and the managing underwriter) so that after delivery of such prospectus, as so
amended or supplemented, to the purchasers of such Registrable Securities, such
prospectus, as so amended or supplemented, shall not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(vi) Notification of Stop Orders; Suspensions of Qualifications and Exemptions.
Promptly notify in writing the Participating Holders, the sales or placement agent,
if any, therefor and the managing underwriter of the securities being sold of the
issuance by the SEC of (A) any stop order issued or threatened to be issued by the
SEC or (B) any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose and
the Company agrees to use its reasonable best efforts to (x) prevent the issuance of
any such stop order, and in the event of such issuance, to obtain the withdrawal of
any such stop order and (y) obtain the withdrawal of any order suspending or
preventing the use of any related prospectus or suspending the qualification of any
Registrable Securities included in the Registration Statement for sale in any
jurisdiction at the earliest practicable date;
(vii) Amendments and Supplements. Prepare and file with the SEC such
amendments, including post-effective amendments to the Registration Statement as may
be necessary to keep the Registration Statement continuously effective for the
applicable time period required hereunder and, if applicable, cause the related
prospectus to be supplemented by any
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required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act with respect to the disposition of all
securities covered by the Registration Statement during such period in accordance
with the intended methods of disposition by the sellers thereof set forth in the
Registration Statement as so amended or in such prospectus as so supplemented.
(viii) Acceleration. If a majority in interest of the Participating Holders so
request, request acceleration of effectiveness of the Registration Statement from
the SEC and any post-effective amendments thereto, if any are filed; provided that
at the time of such request, the Company believes in good faith that it is
unnecessary to amend further the Registration Statement to comply with this
subparagraph. If the Company wishes to further amend the Registration Statement
prior to requesting acceleration, it may so amend prior to requesting acceleration;
(ix) Copies. Furnish as promptly as practicable to each Participating Holder
and Inspector prior to filing the Registration Statement or any supplement or
amendment thereto, copies of the Registration Statement, supplement or amendment as
it is proposed to be filed, and after such filing such number of copies of the
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in the Registration
Statement (including each preliminary prospectus) and such other documents as each
such Participating Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Participating Holder;
(x) Blue Sky. Use its reasonable best efforts to, prior to any public offering
of the Registrable Securities, register or qualify (or seek an exemption from
registration or qualifications) such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any Participating Holder or
underwriter may request, and to continue such qualification in effect in each such
jurisdiction for as long as is permissible pursuant to the laws of such
jurisdiction, or for as long as a Participating Holder or underwriter requests or
until all of such Registrable Securities are sold, whichever is shortest, and do any
and all other acts and things which may be reasonably necessary or advisable to
enable any Participating Holder to consummate the disposition in such jurisdictions
of the Registrable Securities;
(xi) Other Approvals. Use its reasonable best efforts to obtain all other
approvals, consents, exemptions or authorizations from such governmental agencies or
authorities as may be necessary to enable the Participating Holders and underwriters
to consummate the disposition of Registrable Securities;
(xii) Agreements. Enter into customary agreements (including any underwriting
agreements in customary form), and take such other actions as may
be reasonably required in order to expedite or facilitate the disposition of
Registrable Securities;
12
(xiii) SEC Compliance, Earnings Statement. Comply with all applicable rules and
regulations of the SEC and make available to its shareholders, as soon as reasonably
practicable, but no later than 15 months after the effective date of the
Registration Statement, an earnings statement covering a period of 12 months
beginning after the effective date of the Registration Statement, in a manner which
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(xiv) Nasdaq. Cooperate with each Participating Holder and each underwriter
participating in the disposition of such Registrable Securities and underwriters’
counsel in connection with any filings required to be made with Nasdaq, and use its
reasonable best efforts to cause all such Registrable Securities to be listed on the
Nasdaq Global Market or such other securities exchange on which similar securities
issued by the Company are then listed, if so listed; and
(xv) Transfer Agent, Registrar and CUSIP. Provide a transfer agent and
registrar for all Registrable Securities registered pursuant hereto and a CUSIP
number for all such Registrable Securities, in each case, no later than the
effective date of such registration.
(b) Seller Information. The Company may require each Participating Holder as to which
any registration of such Holder’s Registrable Securities is being effected to furnish to the
Company with such information regarding such Participating Holder and such Participating Holder’s
method of distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing. If a Participating Holder refuses to provide the Company with any of
such information on the grounds that it is not necessary to include such information in the
Registration Statement, the Company may exclude such Participating Holder’s Registrable Securities
from the Registration Statement. The exclusion of a Participating Holder’s Registrable Securities
shall not affect the registration of the other Registrable Securities to be included in the
Registration Statement.
(c) Notice to Discontinue. Each Participating Holder whose Registrable Securities are
covered by the Registration Statement filed pursuant to this Agreement agrees that, upon receipt of
written notice from the Company of the happening of any event of the kind described in Section
2.4(a)(v) or of the institution of any blackout period described
under Section
2.1(e)(iv), such Participating Holder shall forthwith discontinue the disposition of
Registrable Securities until such Participating Holder’s receipt of the copies of the supplemented
or amended prospectus contemplated by Section 2.4(a)(v) or until it is advised in writing
by the Company that the use of the prospectus may be resumed and has received copies of any
additional or supplemental filings which are incorporated by reference into the prospectus, and, if
so directed by the Company in the case of an event described in Section 2.4(a)(v), such
Participating Holder shall deliver to the Company (at the Company’s expense) all copies, other
than permanent file copies then in such Participating Holder’s possession, of the prospectus
covering such Registrable Securities which is current at the time of receipt of such notice.
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2.5 Registration Expenses. All Registration Expenses incurred by the Company and the
Participating Holders in connection with any Registration Statement to be filed pursuant to the
exercise of demand rights in Section 2.1 shall be borne by the Participating Holders,
except to the extent such Registration Expenses arise from general and administrative costs
allocable to the Company’s officers and employees in connection with the registration required by
the exercise of such demand rights. All Registration Expenses incurred by the Company and the
Participating Holders in connection with the exercise of piggyback rights in Section 2.2
shall be borne by the Company. All Selling Expenses relating to Registrable Securities registered
by the exercise of demand rights in Section 2.1 or piggyback rights in Section 2.2
shall be borne by the Participating Holders.
2.6 Indemnification.
(a) Indemnification by the Company. The Company agrees, notwithstanding termination of
this Agreement, to indemnify and hold harmless to the fullest extent permitted by applicable law,
each Holder, each of its directors, officers, employees, advisors, agents and general or limited
partners (and the directors, officers, employees, advisors and agents thereof), their respective
Affiliates and each Person who Controls any of such Persons, and each underwriter and each Person
who Controls any underwriter (collectively, “Holder Indemnified Parties”) from and against any and
all losses, claims, damages, expenses (including, reasonable costs of investigation and fees,
disbursements and other reasonable charges of counsel and experts and any amounts paid in
settlement effected with the Company’s consent) or other liabilities (collectively, “Losses”)
arising out of any third-party action, investigation or proceeding (collectively, a “Claim”) to
which any such Holder Indemnified Party may become subject under the Securities Act, Exchange Act,
any other federal law, any state or common law or any rule or regulation promulgated thereunder or
otherwise, insofar as such Losses are resulting from or arising out of or based upon (i) any
untrue, or alleged untrue, statement of a material fact contained in the Registration Statement,
prospectus or preliminary prospectus (as amended or supplemented) or any document incorporated by
reference in any of the foregoing or resulting from or arising out of or based upon 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, in light of the circumstances under which
they were made), not misleading, or (ii) any violation by the Company of the Securities Act,
Exchange Act or any rule or regulation promulgated thereunder or otherwise incident to any
registration, qualification or compliance and in any such case, the Company will reimburse each
such Holder Indemnified Party for any reasonable legal expenses and any other Losses reasonably
incurred in connection with investigating, preparing or defending any such Claim. Such indemnity
obligation shall remain in full force and effect regardless of any investigation made by or on
behalf of the Holder Indemnified Parties and shall survive the transfer of Registrable Securities
by such Holder Indemnified Parties.
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(b) Indemnification by Holders. In connection with any proposed registration in which
a Holder is participating pursuant to this Agreement, each such Holder shall furnish to
the Company in writing such information with respect to such Holder as the Company may
reasonably request or as may be required by law for use in connection with the Registration
Statement or prospectus or preliminary prospectus to be used in connection with such registration
and each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, any
underwriter retained by the Company and their respective directors, officers, partners, employees,
advisors and agents, their respective Affiliates and each Person who Controls any of such Persons
to the same extent as the foregoing indemnity from the Company to the Holders as set forth in
Section 2.6(a) (subject to the exceptions set forth in the foregoing indemnity and
applicable law), but only with respect to any such information furnished in writing by such Holder
expressly for use therein. Such indemnity obligation shall remain in full force and effect
regardless of any investigation made by or on behalf of the Holder Indemnified Parties (except as
provided above) and shall survive the transfer of Registrable Securities by such Holder.
(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification
hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party
(the “Indemnifying Party”) after the receipt by the Indemnified Party of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof made in writing for
which the Indemnified Party intends to claim indemnification or contribution pursuant to this
Agreement; provided, however, that, the failure so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of any liability that it may have to the Indemnified Party hereunder
unless and to the extent such Indemnifying Party is materially prejudiced by such failure. If
notice of commencement of any such action is given to the Indemnifying Party as above provided, the
Indemnifying Party may participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at its own expense,
with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified
Party may employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be paid by the Indemnified Party unless (i) the
Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action with counsel satisfactory to the Indemnified Party in its reasonable judgment or
(iii) the named parties to any such action reasonably believe that the representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under
applicable standards of professional conduct. In the case of clause (ii) above and (iii) above, the
Indemnifying Party may not assume the defense of such action on behalf of such Indemnified Party.
No Indemnifying Party shall be liable for any settlement entered into without its written consent,
which consent shall not be unreasonably withheld. No Indemnifying Party may, without the written
consent of the Indemnified Party, effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened Claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the Indemnified Party is an
actual or potential party to such Claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the Indemnified Party from all liability arising out of such
Claim and (B) does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of any Indemnified Party. The rights afforded to any Indemnified
Party hereunder shall be in addition to any rights that such Indemnified Party may have at common
law, by separate agreement or otherwise.
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(d) Contribution. If the indemnification provided for in this Section 2.6 from
the Indemnifying Party is unavailable or insufficient to hold harmless an Indemnified Party in
respect of any Losses, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party,
shall contribute to the amount paid or payable by the Indemnified Party as a result of such Losses
in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and
the Indemnified Party, as well as any other relevant equitable considerations. The relative faults
of the Indemnifying Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, was made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the Indemnifying Party’s
and Indemnified Party’s relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a result of the Losses or
other liabilities referred to above shall be deemed to include any legal or other fees, charges or
expenses reasonably incurred by such party in connection with any investigation or proceeding. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution pursuant to this Section 2.6(d).
2.7 Certain Limitations On Registration Rights.
(a) No Holder may participate in the Registration Statement hereunder unless such Holder (i)
provides all information reasonably concerning the Holder required to be included or incorporated
by reference in such registration Statement under the Securities Act, the Exchange Act and the
rules promulgated thereunder and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements and agrees to sell such Holder’s Registrable Securities on
the basis provided in any underwriting agreement approved by the Holder or Holders entitled
hereunder to approve such arrangements.
2.8 Restrictions on Public Sale by Holders.
(a) If requested by the lead managing underwriter with respect to any firm underwriting public
offering of Common Stock or any other security of the Company convertible into or exchangeable or
exercisable for such Common Stock, each Holder of Registrable Securities agrees not to effect any
public sale or distribution of any Common Stock or of any securities convertible into or
exchangeable or exercisable for Common Stock, including a sale pursuant to Rule 144 under the
Securities Act, during a period of 180 days (or such other period as may be reasonably required by
such lead managing underwriter) after any firm underwriting public offering of Common Stock of the
Company, commencing on the effective date of the Registration Statement (the “Lock-Up Period”),
unless expressly authorized to do so by the lead managing underwriter. Holders of Registrable
Securities agree to evidence this restriction by execution of a customary form of lock-up agreement
substantially in such form as is applicable to executive officers and directors of the Company.
16
(b) Each Holder acknowledges and agrees that certain laws prohibit such Holder from trading
securities of the Company on the basis of material non-public information, and each Holder agrees
not to engage in any sale, disposition or other transaction in violation of such laws. In
furtherance of the foregoing, each Holder agrees not to effect any sale or distribution of any
Registrable Securities other than in compliance with any and all internal policies of the Company
with respect to xxxxxxx xxxxxxx and sales of Company securities by insiders, including any
“blackout periods” or trading windows that may be instituted by the Company in accordance
therewith.
2.9 Transfer of Registration Rights. The rights of a Holder hereunder shall not be
transferred or assigned (including by operation of law or otherwise) except with the prior written
consent of the Company; provided, however, that ACEC shall have the right to assign its rights or
obligations hereunder to any of its Affiliates without the consent of the Company in connection
with a transfer of Registrable Securities to such Affiliate if (a) such transfer or assignment is
effected in accordance with applicable securities and other laws; (b) such Affiliate executes a
Joinder Agreement in the form of Exhibit A; and (c) the Company is given written notice by
ACEC of such transfer or assignment, stating the name and address of the Affiliate and identifying
the Registrable Securities with respect to which such rights are being transferred or assigned.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
3.1 Termination. This Agreement shall automatically terminate upon the earliest to
occur of (i) the five-year anniversary of the Effective Date and (ii) the time at which no
Registrable Securities are outstanding; provided that the provisions of Section 2.5 and
Section 2.6 (with respect to any Registrable Securities sold prior to the termination of
this Agreement) and this Article III shall survive such termination.
3.2 Notices. All notices, requests or consents provided for or required to be given
to a party under this Agreement shall be in writing and shall be deemed to be duly given if
personally delivered or mailed by certified mail, return receipt requested, or nationally
recognized overnight delivery service with proof of receipt maintained, at the following addresses
(or any other address that either party may designate by written notice to the other party):
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if to ACEC, to:
America Capital Energy Corporation
Chrysler Building
000 Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Chrysler Building
000 Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to (which does not constitute notice):
Kane, Russell, Xxxxxxx & Xxxxx P.C.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
If to Seller:
Crimson Exploration Inc.
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: E. Xxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: E. Xxxxxx Xxxxx
with a copy to (which does not constitute notice):
Xxxxxx & Xxxxxx LLP
0000 Xxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: T. Xxxx Xxxxx
0000 Xxxxxx Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: T. Xxxx Xxxxx
Any such notice shall, (a) if delivered personally, be deemed received upon delivery, (b) if
delivered by certified mail, be deemed received five business days after the date of deposit in the
United States mail, and (c) if delivered by nationally recognized overnight delivery service, be
deemed received the second business day after the date of deposit with the nationally recognized
delivery service.
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3.3 Entire Agreement; Supersedure. This Agreement constitutes the entire agreement of
the parties relating to the subject matter hereof and supersedes all prior contracts or agreements
with respect thereto, whether oral or written.
3.4 Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective permitted successors, permitted assigns, permitted
distributees and legal representatives.
3.5 Third Party Beneficiaries. Nothing in this Agreement shall create or be deemed to
create any third-party beneficiary rights in any person not a party to this Agreement.
3.6 Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE.
3.7 Waiver of Jury Trial. EACH OF THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT.
3.8 Amendment. Notwithstanding anything to the contrary in this Agreement, this
Agreement may only be amended, modified, supplemented or restated by a written instrument executed
by each of the parties.
3.9 No Waiver. A waiver or consent, express or implied, to or of any breach or
default by any party in the performance by that party of its obligations with respect to any
obligation, covenant, agreement or condition in this Agreement is not a consent or waiver to or of
any other breach or default in the performance by that party of the same or any other obligations
of that party with respect to this Agreement. Failure on the part of a party to insist upon strict
compliance with any obligation, covenant, agreement or condition in this Agreement or to declare
any person in breach or default, irrespective of how long that failure continues, does not
constitute a waiver by that party of its rights with respect to such obligation, covenant,
agreement or condition until the applicable statute-of-limitations period has run.
3.10 Severability. If any provision of this Agreement is or becomes invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. Furthermore, in lieu of each such
illegal, invalid or unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as
may be possible and be legal, valid and enforceable.
3.11 Counterparts. This Agreement may be executed in counterparts (including
facsimile counterparts), each of which, when so executed and delivered, shall be deemed an
original, and all of which together shall constitute a single agreement binding on the parties,
notwithstanding that all parties are not signatories to the original or the same counterpart. Any
signature delivered by facsimile transmission or scanned and emailed transmission shall be deemed a
valid and binding signature for all purposes hereof.
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[Signature Page Follows]
20
Execution Version
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and year first
above written.
CRIMSON EXPLORATION INC. |
||||
By: | /s/ E. Xxxxxx Xxxxx | |||
Name: | E. Xxxxxx Xxxxx | |||
Title: | Senior Vice President and Chief Financial Officer | |||
AMERICA CAPITAL ENERGY CORPORATION |
||||
By: | /s/ Ni Zhaoxing | |||
Name: | Ni Zhaoxing | |||
Title: | Chairman and Chief Executive Officer | |||
Signature Page to
Registration Rights Agreement
Registration Rights Agreement
EXHIBIT A
JOINDER AGREEMENT
This
Joinder Agreement is made this _____ day of , 200_, by and between
(the “Transferee”) and Crimson Exploration Inc., a Delaware limited
liability company (the “Company”), pursuant to the terms of the Registration Rights Agreement,
dated December 22, 2010 (the “Agreement”), between the Company and America Capital Energy
Corporation, a New York corporation (“ACEC”). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to them in the Agreement.
WITNESSETH:
WHEREAS, the Company and ACEC entered into the Agreement to provide for certain rights and
obligations of ACEC as a Holder of Registrable Securities; and
WHEREAS, the Company and ACEC have required in the Agreement that all Persons to whom
Registrable Securities are transferred must enter into a Joinder Agreement binding the Transferee
to the Agreement to the same extent as if they were original parties thereto and imposing the same
restrictions and obligations on the Transferee and the Registrable Securities to be acquired by the
Transferee as are imposed upon ACEC under the Agreement;
NOW, THEREFORE, in consideration of the mutual promises of the parties and as a condition of
the purchase or receipt by the Transferee of the Registrable Securities, the Transferee
acknowledges and agrees as follows:
1. The Transferee has received and read the Agreement and acknowledges that the Transferee is
acquiring Registrable Securities subject to the terms and conditions of the Agreement.
2. The Transferee agrees that the Registrable Securities acquired or to be acquired by the
Transferee are bound by and subject to all of the terms and conditions of the Agreement, and hereby
joins in, and agrees to be bound by, and shall have the benefit of, all of the terms and conditions
of the Agreement to the same extent as if the Transferee were an original party to the Agreement.
3. Any notice required as permitted by the Agreement shall be given to Transferee at the
address listed beneath the Transferee’s signature below.
4. The Transferee is acquiring [_____] shares of Common Stock representing Registrable
Securities.
5. The Transferee irrevocably makes, constitutes and appoints ACEC, acting individually or
collectively, as the Transferee’s true and lawful agent and attorney-in-fact, with full power of
substitution and full power and authority in its name, place and stead, to make, execute, sign,
acknowledge, swear to, record and file (i) any amendment, modification, supplement, restatement or
waiver of
any
provision of the Agreement that has been approved in accordance with the Agreement and (ii) all other instruments, certificates, filings or papers
not inconsistent with the terms of the Agreement which may be necessary or advisable in the
determination of ACEC and the Company to evidence an amendment, modification, supplement,
restatement or waiver of, or relating to, the Agreement or to effect or carry out another provision
of the Agreement or which may be required by law to be filed on behalf of the Company. With respect
to the Transferee, the foregoing power of attorney (x) is coupled with an interest, shall be
irrevocable and shall survive the incapacity or bankruptcy of the Transferee and (y) shall survive
the disposition by the Transferee of all or any portion of the Registrable Securities held by the
Transferee.
Transferee
Address:
Joinder Agreement to
Registration Rights Agreement
Registration Rights Agreement