EXHIBIT 10.37
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of December 1,
2004, is made and entered into by and among Far East Energy Corporation
("Company"), RAB Europe Fund Ltd. ("RAB Europe"), RAB Special Situations L.P.
("RABSS"), Roytor & Co. ("Roytor"), Xxxxx Xxxxxx ("Xxxxxx," and together with
RAB Europe, RABSS and Roytor, the "Investors") for the Investors' benefit.
PRELIMINARY STATEMENTS
A. The Company has entered into (a) those certain Subscription
Agreements with RAB Europe, RABSS, Roytor and Xxxxxx dated September 3, 2003
(collectively, the "Initial Subscription Agreements"), pursuant to which RAB
Europe, RABSS, Roytor and Xxxxxx purchased an aggregate of 2,600,000 shares of
the common stock, par value $0.001 per share, of the Company ("Company Common
Stock") and (b) that certain Subscription Agreement dated the date hereof
("Subsequent Subscription Agreement"), pursuant to which RABSS purchased 250,000
shares of Company Common Stock.
B. In connection with the Initial Subscription Agreements, the Company
executed and delivered those certain Warrant Agreements dated October 17, 2003
(collectively, the "Original Warrant Agreements"), pursuant to which RAB Europe,
RABSS, Roytor and Xxxxxx may purchase an aggregate of 2,608,750 shares of
Company Common Stock.
C. Each of RAB Europe, RABSS, Roytor and Xxxxxx has exercised 250,000
shares, 375,000 shares, 16,250 shares and 8,750 shares, respectively, of Company
Common Stock underlying the Original Warrant Agreements and in connection
therewith the Company cancelled the Original Warrant Agreements and executed and
delivered (i) that certain Replacement Warrant Agreement dated April 19, 2004,
pursuant to which RAB Europe may purchase 750,000 shares of Company Common
Stock, (ii) that certain Replacement Warrant Agreement dated April 19, 2004,
pursuant to which RABSS may purchase 375,000 shares of Company Common Stock,
(iii) that certain Replacement Warrant Agreement dated [the date hereof],
pursuant to which Roytor may purchase 48,750 shares of Company Common Stock and
(iv) that certain Replacement Warrant Agreement dated April 8, 2004, pursuant to
which Xxxxxx may purchase 26,250 shares of Company Common Stock (collectively,
the "Warrant Agreements").
D. The Company has agreed to provide the Investors with certain
registration rights with respect to the shares of Company Common Stock purchased
pursuant to the Initial Subscription Agreements and issuable upon exercise of
the Warrant Agreements.
E. Pursuant to the terms of the Subsequent Subscription Agreement, the
Company has agreed to provide RABSS with certain registration rights with
respect to the shares of Company Common Stock purchased pursuant to the
Subsequent Subscription Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE 1
REGISTRATION RIGHTS AND PROCEDURES
1.1 Filing of Registration Statement.
(a) Subject to the terms and conditions of this Agreement, the Company
shall prepare a Registration Statement on Form S-2, or other applicable form if
Form S-2 is not available or has been rescinded or replaced ("Registration
Statement"), with respect to the 2,600,000 shares of Company Common Stock
purchased pursuant to the Initial Subscription Agreements, the 650,000 shares of
Company Common Stock issued upon exercise of the Original Warrant Agreements,
the 1,200,000 shares of Company Common Stock issuable upon exercise of the
Warrant Agreements, and the 250,000 shares of Company Common Stock purchased
pursuant to the Subsequent Subscription Agreement (collectively, the
"Registrable Securities"), and use commercially reasonable efforts to cause the
Registration Statement to be initially filed with the Securities and Exchange
Commission ("SEC") within 45 days following the Registration Date; provided that
if the expiration of such 45 day period ends on or after a date in which the
Company cannot file a registration statement covering the resale of the
Registrable Securities under the Securities Act of 1933, as amended ("Securities
Act"), and the rules and regulations promulgated thereunder, then, in such
event, the Company shall use commercially reasonable efforts to cause the
Registration Statement to be initially filed with the SEC within 45 days
following the date the Company is so able to file such registration statement.
The Company shall provide the Investors and one legal counsel for the Investors
an opportunity to review and comment on the Registration Statement at least five
Business Days prior to filing and prepare and file with the SEC and all other
amendments thereto within a reasonable number of days prior to their filing with
the SEC. For purposes of this Agreement, (a) the term "Registration Date" shall
mean the date on which the Company's Registration Statement on Form S-2 (File
No. 333-117635) filed with the SEC on July 23, 2004 is declared effective by the
SEC and (b) the term "Business Day" shall mean, with respect to any act to be
performed hereunder, each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in New York, New York or other
applicable place where such act is to occur are authorized or obligated by
applicable law, regulation or order to close.
(b) Notwithstanding anything contained herein to the contrary, if the
Company has an effective registration statement under the Securities Act
covering the Registrable Securities and becomes eligible to use Form S-3 or such
other short-form registration statement form under the Securities Act, the
Company may, upon 20 days prior notice to all holders of Registrable Securities
included in the "Selling Security Holders" section of such registration
statement, register any Registrable Securities registered but not yet
distributed under such effective registration statement on a short-form
registration statement under the Securities Act and, once such short-form
registration statement is declared effective, de-register such shares under the
previous registration statement, transfer the filing fees from the previous
registration statement (such transfer pursuant to Rule 429 under the Securities
Act, if applicable), or file a post-effective amendment converting the previous
registration statement to a short-form registration statement.
1.2 Effectiveness of Registration Statement. The Company shall use
commercially reasonable efforts to (a) have the Registration Statement declared
effective by the SEC; (b) subject to Section 1.4, prepare and file with the SEC
such amendments and supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep the Registration
Statement effective with respect to any Registrable Securities, until the
earlier of (i) such Registrable Securities covered by the Registration Statement
have been sold by the Investors, (ii) the date on which either such Registrable
Securities are distributed to the public pursuant to Rule 144 promulgated by the
SEC pursuant to the Securities Act (or any similar provision then in effect) or
are saleable pursuant to Rule 144(k) promulgated by the SEC pursuant to the
Securities Act, (iii) the eighteen month anniversary
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of the effective date of such Registration Statement or (iv) the date on which
such Registrable Securities are sold to the Company (but not before the
expiration of the applicable prospectus delivery requirements); and (c) comply
with the provisions of the Securities 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.
1.3 Failure to Meet Filing or Effectiveness Deadlines. If the
Registration Statement is not filed within the time period set forth in Section
1.1 or the effectiveness thereof is not maintained within the time period set
forth in Section 1.2, the Company shall have no obligation to pay an Investor or
any other holder of Registrable Securities any amount, whether as a penalty or
otherwise.
1.4 Information and Copies.
(a) The Company shall furnish to each seller of Registrable Securities
such number of copies of the Registration Statement, each amendment and
supplement thereto, the prospectus included in the Registration Statement
(including each preliminary prospectus), and such other documents as such seller
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller.
(b) The Company shall promptly notify each seller of Registrable
Securities promptly of the happening of any event as a result of which the
prospectus included in the Registration Statement 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 then existing and shall use commercially reasonable efforts to
prepare and file with the SEC, and promptly notify each holder of Registrable
Securities of the filing of, a supplement to such prospectus or an amendment to
the Registration Statement so that, as thereafter delivered to the purchasers of
Registrable Securities, such prospectus will 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 and in the case of an amendment to the
Registration Statement, use reasonable best efforts to cause it to become
effective as soon as possible. Upon receipt of any notice from the Company of
the happening of any event of the kind described above, each seller of
Registrable Securities will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement until such seller's receipt of
the copies of the supplemented or amended prospectus, or until it is advised in
writing by the Company that the use of the prospectus may be resumed.
(c) The Company shall make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to the Registration Statement, and any attorney, accountant, or other
agent retained by any such seller or underwriter, all financial and other
records (reasonably requested), the Company's applicable corporate documents and
contracts as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors,
employees, and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant, or agent in
connection with the Registration Statement; provided, however, that each seller
of Registrable Securities agrees that information obtained by it as a result of
such inspections which is deemed confidential shall not be used by it as the
basis for any market transaction in the Company's securities unless and until
such information is made generally available to the public and each such seller
shall cause any attorney, accountant, or agent retained by such seller to keep
confidential any such information.
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(d) In the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Company Common Stock included in the Registration Statement for sale in any
jurisdiction, the Company will promptly notify each seller of such and will use
reasonable efforts to promptly obtain the withdrawal of such order.
(e) The Company reserves the right to postpone for a reasonable period
of time, not to exceed in the aggregate 120 days from the date notification of
such delay is sent to the holders of Registrable Securities during any 365 day
period, the filing or the effectiveness of the Registration Statement if the
Company's Board of Directors in good faith determines that (i) such registration
might have a material adverse effect on any of the Company's plans or proposals
with respect to any financing, acquisition, recapitalization, reorganization, or
other material transaction, or (ii) the Company is in possession of material
non-public information that, if publicly disclosed, could result in a material
disruption of a major corporate development or transaction then pending or in
progress or in other material adverse consequences to the Company.
1.5 Listing of Registrable Securities. The Company shall cause all
Registrable Securities to be listed on each securities exchange or other
quotation service on which the Company Common Stock is then listed.
1.6 Underwritten Offering.
(a) If the offering is to be underwritten, the Company shall enter into
any necessary agreements in connection therewith (including an underwriting
agreement containing customary representations, warranties, and agreements).
(b) To the extent either the Company or a majority of the holders of
Registrable Securities ("Initiating Party") intends to distribute the
Registrable Securities covered by the Registration Statement by means of a firm
commitment underwritten public offering under the Securities Act (an
"Underwritten Offering"), the ultimate decision of whether to obtain an
underwriter and the identity of the underwriter will be selected by the Company.
In such event, the right of any holder to include its Registrable Securities in
such registration shall be conditioned upon such holder's participation in such
underwriting and the inclusion of such holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such holder) to the extent provided herein. All holders
proposing to distribute their securities through such underwriting shall enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the underwriter advises the Initiating Party in writing
that marketing factors require a limitation on the number of shares to be
underwritten, then the Initiating Party shall so advise all holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated among all holders thereof, including the
Initiating Party, in proportion (as nearly as practicable) to the amount of
Registrable Securities owned by each holder and to be included in the
underwriting; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities, if any, are first entirely excluded from the underwriting. All
costs and expenses arising out of or associated with the use of an underwriter,
including, without limitation, all underwriter fees, commissions, legal
expenses, and other costs, shall be borne solely by participating holders on a
pro rata basis.
1.7 Nature of Sale. Notwithstanding any other provision of this
Agreement, Company Common Stock shall only be treated as Registrable Securities
if and so long as it has not been (a) sold to
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or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (b) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale.
ARTICLE 2
RIGHTS AND UNDERTAKINGS OF
HOLDERS OF REGISTRABLE SECURITIES
2.1 Rights of Holders. Each holder of Registrable Securities shall have
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any of the Company's securities as a result of exercising or
refraining from exercising any such right or rights.
2.2 Suspension of Sales; Notice of Sales. If any Registrable Securities
are included in a Registration Statement pursuant to the terms of this
Agreement, the holder thereof will not (until further notice) effect sales
thereof after receipt of written notice from the Company of the occurrence of an
event specified in order to permit the Company to correct or update the
Registration Statement or prospectus. Each holder of Registrable Securities
shall notify the Company of the sale of any Registrable Securities within a
reasonable period of time prior to such sale.
2.3 Compliance. If any Registrable Securities are being registered in
any registration pursuant to this Agreement, the holder thereof will comply with
all anti-stabilization, manipulation, and similar provisions of Section 10 of
the Securities Exchange Act of 1934, as amended ("Exchange Act"), and any rules
promulgated thereunder by the SEC and, at the Company's request, will execute
and deliver to the Company and to any underwriter participating in such offering
an appropriate agreement to such effect.
2.4 Termination of Effectiveness. Following the end of the period during
which the Company is obligated to keep the Registration Statement current and
effective as described herein, each holder of Registrable Securities included in
the Registration Statement shall discontinue sales thereof pursuant to such
Registration Statement, unless such holder has received written notice from the
Company of its intention to continue the effectiveness of such Registration
Statement with respect to any of such securities which remain unsold.
2.5 Furnish Information. It shall be a condition precedent to the
Company's obligations to take any action pursuant to this Agreement with respect
to the Registrable Securities of any selling holder that such holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such holder's Registrable
Securities or as the Company shall otherwise reasonably request. The obligations
of the Company under this Agreement shall be suspended as to any holder of
Registrable Securities unless and until such holder complies with the preceding
sentence.
2.6 Underwritten Registration. No holder of Registrable Securities may
participate in any registration hereunder which is underwritten unless such
holder (a) agrees to sell such holder's securities on the basis provided in any
underwriting arrangements approved by the Company; (b) completes and executes
all customary questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; and (c) agrees
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to pay its pro rata share of all underwriting discounts and commissions and its
own expenses (including, without limitation, counsel fees).
2.7 Delay of Registration. No holder of Registrable Securities shall
have any right to obtain or seek an injunction restraining or otherwise delaying
the preparation of, or declaration of the effectiveness of, any Registration
Statement initiated in accordance with the terms of this Agreement if such
injunction is the result of any controversy that might arise with respect to the
interpretation or implementation of these provisions.
ARTICLE 3
INDEMNIFICATION
3.1 Indemnification by the Company. The Company shall indemnify and hold
harmless, with respect to any Registration Statement filed by it pursuant to
this Agreement, to the fullest extent permitted by law, each holder of
Registrable Securities covered by such Registration Statement, as well as such
holder's officers, directors, employees, agents, and general or limited partners
(and the directors, officers, employees, and agents thereof) and each other
person, if any, who controls such holder within the meaning of the Securities
Act (collectively, the "Holder Indemnified Parties") against all losses, claims,
damages, liabilities, and expenses joint or several (including reasonable fees
of counsel and any amounts paid in settlement effected with the Company's
consent, which consent shall not be unreasonably withheld) (collectively,
"Losses") to which any such Holder Indemnified Party may become subject under
the Securities Act, the Exchange Act, any other federal law, any state or common
law, any rule or regulation promulgated thereunder, or otherwise, insofar as
such Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) is caused by (a) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement in which
such Registrable Securities were included as contemplated hereby or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, (b) any
untrue statement or alleged untrue statement of a material fact contained in any
preliminary, final, or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the SEC any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (c)
any violation by the Company of the Securities Act, the Exchange Act, any other
federal law, any state or common law, or any rule or regulation promulgated
thereunder in connection with any such registration; provided, however, that the
Company shall not be liable to any such Holder Indemnified Party in any such
case to the extent that any such Loss (or action or proceeding, whether
commenced or threatened, in respect thereof) arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or amendment thereof or supplement thereto
or in any such preliminary, final, or summary prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any such Holder Indemnified Party relating to such Holder Indemnified Party for
use in the preparation thereof; and provided further, that the Company shall not
be liable to any such Holder Indemnified Party with respect to any preliminary
prospectus to the extent that any such Loss of such Holder Indemnified Party
results from the fact that such Holder Indemnified Party sold Registrable
Securities to a person to whom there was not sent or given, at or before the
written confirmation of such sale, a copy of the prospectus (excluding documents
incorporated by reference) or of the prospectus as then amended or supplemented
(excluding documents incorporated by reference) if the Company previously
furnished copies thereof to such Holder Indemnified Party in compliance with
this Agreement and the Loss of such Holder Indemnified Party results from an
untrue statement or omission of a material fact contained in such preliminary
prospectus which was corrected in the prospectus (or the prospectus as amended
or
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supplemented). Such indemnity and reimbursement of expenses and obligations
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
such securities by such Holder Indemnified Parties.
3.2 Indemnification by Holders. Each holder of Registrable Securities
participating in any registration hereunder shall indemnify and hold harmless,
to the fullest extent permitted by law, the Company, its directors, officers,
employees, and agents, and each person who controls the Company (within the
meaning of the Securities Act) (collectively, "Company Indemnified Parties")
against all Losses to which any Company Indemnified Parties may become subject
under the Securities Act, the Exchange Act, any other federal law, any state or
common law, or otherwise, insofar as such Losses (or actions or proceedings,
whether commenced or threatened, in respect thereof) are caused by (a) any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement in which such holder's Registrable Securities were
included or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (b) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary, final, or summary prospectus, together with
the documents incorporated by reference therein (as amended or supplemented if
the Company shall have filed with the SEC any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and in the cases described in clauses (a) and (b) of this Section
3.2, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information furnished in writing by such holder
relating to such holder for use in the preparation of the documents described in
such clauses (a) and (b), (c) any violation by such holder of the Securities
Act, the Exchange Act, any other federal law, any state or common law, or any
rule or regulation promulgated thereunder applicable to such holder and relating
to action of or inaction by such holder in connection with any such
registration, and (d) with respect to any preliminary prospectus, the fact that
such holder sold Registrable Securities to a person to whom there was not sent
or given, at or before the written confirmation of such sale, a copy of the
prospectus (excluding the documents incorporated by reference) or of the
prospectus as then amended or supplemented (excluding documents incorporated by
reference) if the Company has previously furnished copies thereof to such holder
in compliance with this Agreement and the Loss of such Company Indemnified Party
results from an untrue statement or omission of a material fact relating to
information provided by such holder contained in such preliminary prospectus
which was corrected in the prospectus (or the prospectus as amended or
supplemented). Such indemnity obligation shall remain in full force and effect
regardless of any investigation made by or on behalf of Company Indemnified
Parties and shall survive the transfer of such securities by such holder.
3.3 Conduct of Indemnification Proceedings. Promptly after receipt by an
identified party hereunder of written notice of the commencement of any action,
suit, proceeding, investigation, or threat thereof with respect to which a claim
for indemnification may be made pursuant hereto, such indemnified party shall,
if a claim in respect thereto is to be made against an indemnifying party, give
written notice to the indemnifying party of the threat or commencement thereof;
provided, however, that the failure to so notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. If any such claim or action referred to hereunder is
brought against any indemnified party and it then notifies the indemnifying
party of the threat or commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other indemnifying party similarly notified, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party (which counsel
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party). The indemnifying party shall not be liable to an
indemnified party hereunder for any legal expenses of counsel or any other
expenses incurred by such indemnified party in connection
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with the defense thereof, unless the indemnifying party has failed to assume the
defense of such claim or action or to employ counsel reasonably satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party
shall have the right to retain its own counsel, with the fees and expenses to be
paid by the indemnified party, if representation of such indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such action. The indemnifying party
shall not be required to indemnify the indemnified party with respect to any
amounts paid in settlement of any action, proceeding, or investigation entered
into without the written consent of the indemnifying party, which consent shall
not be unreasonably withheld. No indemnifying party shall consent to the entry
of any judgment or enter into any settlement without the consent of the
indemnified party unless (i) such judgment or settlement does not impose any
obligation or liability upon the indemnified party other than the execution,
delivery, or approval thereof, and (ii) such judgment or settlement includes as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim and a full release of all persons that may be entitled to or
obligated to provide indemnification or contribution under this Article.
3.4 Contribution. If the indemnification provided for herein is
unavailable to or insufficient to hold harmless an indemnified party hereunder,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the Losses (or actions or proceedings in
respect thereof) referred to herein 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 in connection with the statements, omissions,
actions, or inactions which resulted in such Losses. The relative fault of the
indemnifying party and the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
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, any action or inaction by any such party, and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement, omission, action, or inaction. 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. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action, suit, proceeding,
investigation, or threat thereof with respect to which a claim for contribution
may be made against an indemnifying party hereunder, such indemnified party
shall, if a claim for contribution in respect thereto is to be made against an
indemnifying party, give written notice to the indemnifying party of the
commencement thereof (if the notice specified herein has not been given with
respect to such action); provided, however, that the failure to so notify the
indemnifying party shall not relieve it from any obligation to provide
contribution which it may have to any indemnified party hereunder, except to the
extent that the indemnifying party is actually prejudiced by the failure to give
notice. The parties hereto agree that it would not be just and equitable if
contribution pursuant hereto were determined by pro rata allocation or by any
other method of allocation which does not take account of equitable
considerations referred to herein.
If indemnification is available hereunder, the indemnifying parties shall
indemnify each indemnified party to the fullest extent provided herein, without
regard to the relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for herein. The provisions hereof
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract, shall remain
in full force and effect regardless of any investigation made by or on behalf of
any indemnified party, and shall survive the transfer of securities by any such
party.
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ARTICLE 4
MISCELLANEOUS
4.1 Termination. The obligations under Article 1 shall terminate on the
date on which is the earlier of (a) the date on which the Company's obligations
under Section 1.2 terminate or (b) the date on which all Registrable Securities
covered by the Registration Statement have been sold.
4.2 Assignment; Successors and Assigns. An Investor may assign its
rights hereunder to any permitted transferee of all or any portion of the
Registrable Securities provided that (a) the Company is furnished with written
notice of the name and address of the assignee and the securities with respect
to which such rights are being assigned, and (b) the Company shall have the
right to require any holder of Registrable Securities to execute a counterpart
of this Agreement as a condition to such holder's claim to any rights hereunder.
This Agreement and all provisions thereof shall be binding upon, inure to the
benefit of, and are enforceable by the parties hereto and their respective
successors and permitted assigns.
4.3 Notices. All notices, requests, and other communications hereunder
shall be in writing and will be deemed to have been duly given and received (a)
when personally delivered, (b) when sent by facsimile upon confirmation of
receipt, (c) three Business Days after the day on which the same has been
delivered prepaid to a nationally recognized courier service, or (d) ten
Business Days after the deposit in the United States mail, registered or
certified, return receipt requested, postage prepaid, in each case addressed to
the Company at 000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000, Xxxxxxx, Xxxxx 00000,
Attn: Chief Executive Officer, facsimile number, (000) 000-0000, or addressed to
an Investor at c/o RAB Capital Ltd., 0 Xxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx
Xxxxxxx, Attn: Xxxxxx Xxxxxxx, facsimile number, 011 44 20 7389 7050 and to any
other holder of Registrable Securities at the address and facsimile number for
such holder contained in the Company's books and records. The Investors or the
Company may agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures reasonably approved by it;
provided that approval of such procedures may be limited to particular notices
or communications. Any party hereto from time to time may change its address,
facsimile number, or other information for the purpose of notices to that party
by giving notice specifying such change to the other parties hereto.
4.4 Public Announcements. Except as otherwise required by law, an
Investor shall not issue any press release or make any other public announcement
with respect to the transactions contemplated hereby without the approval of the
Company, which approval shall not be unreasonably withheld or delayed.
4.5 Governing Law; Jurisdiction.
(a) This Agreement, and the provisions, rights, obligations, and
conditions set forth herein, and the legal relations between the parties hereto,
including all disputes and claims, whether arising in contract, tort, or under
statute, shall be governed by and construed in accordance with the laws of the
State of Texas without giving effect to its conflict of law provisions.
(b) Any and all disputes arising out of, or in connection with, the
interpretation, performance, or nonperformance of this Agreement or any and all
disputes arising out of, or in connection with, transactions in any way related
to this Agreement and/or the relationship between the parties shall be litigated
solely and exclusively before the United States District Court for the Southern
District of Texas, Houston Division. The parties consent to the in personam
jurisdiction of said court for the purposes of any such litigation, and waive,
fully and completely, any right to dismiss and/or transfer any action pursuant
to 28 U.S.C. Section 1404 or 1406 (or any successor statute). In the event the
United States District
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Court for the Southern District of Texas, Houston Division does not have subject
matter jurisdiction of said matter, then such matter shall be litigated solely
and exclusively before the appropriate state court of competent jurisdiction
located in Xxxxxx County, State of Texas.
4.6 No Third Party Beneficiary. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
4.7 Severability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid, or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid, or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
4.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction, or effect.
4.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original instrument and all
of which together shall constitute one and the same instrument.
4.10 Entire Agreement. This Agreement embodies the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
4.11 Further Assurances. Each party shall cooperate and take such action
as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
the undersigned, thereto duly authorized, as of the date first set forth above.
FAR EAST ENERGY CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Chairman and CEO
RAB EUROPE FUND LTD.
By: /s/ W. Xxxxxx Xxxxxxxx
---------------------------------
Name:_________________________________
Title:________________________________
RAB SPECIAL SITUATIONS L.P.
By: /s/ W. Xxxxxx Xxxxxxxx
---------------------------------
Name:_________________________________
Title:________________________________
ROYTOR & CO.
By: /s/ W. Xxxxxx Xxxxxxxx
---------------------------------
Name:_________________________________
Title:________________________________
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
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