EXHIBIT 10 (r)
Annexure A
Registration Rights Agreement
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of September
2, 2003 by and among:
(i) Magellan Petroleum Corporation, a Delaware corporation ("MPC"); and
(ii) Sagasco Amadeus Pty Limited, an Australian corporation ("Sagasco").
RECITALS:
WHEREAS, MPC has issued 1,300,000 shares of its common stock (the "Common
Stock"), to Sagasco pursuant to the Share Sale Agreement, by and among MPC and
Sagasco, dated as of July 10, 2003 ("Share Sale Agreement"); and
WHEREAS, to induce Sagasco to enter into the Share Sale Agreement, MPC and
Sagasco have agreed to enter into this Agreement to provide for certain rights,
privileges and preferences in favor of Sagasco.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
covenants contained in this Agreement and the Share Sale Agreement, the parties
mutually agree as follows:
1. Certain Definitions
The following terms shall have the following respective meanings:
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean Sagasco, including its permitted successors and
assigns that acquire Registrable Securities, directly or indirectly,
from Sagasco. For purposes of this Agreement, MPC may deem and treat
the holder of a Registrable Security reflected on MPC's transfer
agent's records as the Holder and absolute owner thereof and MPC
shall not be affected by any notice to the contrary.
"Registrable Securities" means:
(i) the Common Stock issued to the Holder pursuant to the
Share Sale Agreement (the "MPC Shares"); and
(ii) shares of Common Stock issued in respect of the MPC
Shares as a result of a stock split, stock dividend,
recapitalization or the like.
For purposes of this Agreement, a Registrable Security
will cease to be a Registrable Security on the later of:
(X) 30 days after the date of this Agreement, or (Y) if
as of such date, Sagasco has delivered a written request
to MPC under Section 2 hereof, then at such date when
the offer and sale of such Registrable Security has been
effectively registered under the Securities Act and it
has been sold or distributed in accordance with such
effective registration statement.
The terms "Register", "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration
or ordering of the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as included
in Selling Expenses or as otherwise stated below, incurred by MPC in
complying with Section 2 including, without limitation, all
registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for MPC, blue sky
fees and expenses, and the expense of any special audits incident to
or required by any such registration.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the MPC Shares
registered by the Holder.
2. Requested Registration
(a) Subject to the terms and conditions set forth in this
Agreement, if at any time within 30 days from the date
of this Agreement MPC shall receive a written request
from the Holder to file a registration statement under
the Securities Act covering the resale registration of
all Registrable Securities held by the Holder, MPC
shall use its reasonable best efforts to cause to be
filed and declared effective as soon as reasonably
practicable a registration statement, on Form S-3 or
such other appropriate registration form under the
Securities Act as MPC in its discretion shall determine,
providing for the sale of the Registrable Securities
requested to be included by the Holder. Subject to
Section 2(b)(i) hereof, the Holder shall have the right
to make only one (1) request for Registration of the
Registrable Securities held by the Holder under this
Section 2.
(b) MPC's obligation to use its reasonable best efforts to
cause Registrable Securities to be registered in
accordance with Section 2(a) shall be subject to each of
the following limitations, conditions and
qualifications:
(i) MPC may postpone for a period of ten (10)
days the filing or the effectiveness of a
registration requested pursuant to Section 2
if the Board of Directors of MPC determines
in good faith that such registration might
have an adverse effect on any plan or
proposal by MPC or any of its subsidiaries
with respect to any financing, acquisition,
recapitalization, reorganization, or other
material transaction or that MPC is in
possession of material non-public
information and disclosure of such
information is not in the best interests of
MPC; provided, however, that as soon as the
conditions permitting such delay no longer
exist, MPC shall give notice of that fact
to the Holder and shall promptly proceed
with the registration unless the Holder
shall have elected, at any time prior to the
close of business on the 10th business day
after MPC has so notified the Holder, to
withdraw its request for registration, and
such withdrawn request shall not constitute
a request hereunder.
(ii) MPC shall not be required to effect any
registration pursuant to Section 2(a) unless
such registration relates to all of the
Registrable Securities held by the Holder.
3. Expenses of Registration
Except as otherwise provided herein, all Registration Expenses
incurred in connection with all registrations pursuant to Section 2
shall be borne by MPC. Unless otherwise stated, all Selling Expenses
relating to MPC Shares registered on behalf of the Holder shall be
borne by the Holder.
4. Registration Procedures
(a) Upon receipt of the Holder's written request pursuant to
Section 2, MPC shall keep the Holder advised in writing
as to the initiation of the registration and as to the
completion thereof. At its expense, MPC shall:
(i) prepare and file with the SEC a registration
statement with respect to such Registrable
Securities as soon as practicable following
receipt of the notice but no later than 60
days following receipt of the notice
(subject to extension pursuant to Section
2(b)(i)) and use its reasonable best efforts
to cause such registration statement to
become effective as promptly as practicable
following receipt of the notice (subject to
Section 2(b)(i));
(ii) prepare and file with the SEC such
amendments and supplements to such
registration statement and the prospectus
used in connection therewith as may be
necessary to keep such registration
statement effective and to comply with the
provisions of the Securities Act and the
rules thereunder with respect to the
disposition of all the Registrable
Securities and other securities covered by
such registration statement until the
earlier of (A) the expiration of 210 days
after the Holder is notified by MPC that it
may commence the sale of the Registrable
Securities covered by such registration
statement (as such period may be extended
pursuant to the provisos below and Section
4(c), the "Sale Period") and (B) until MPC
has received written notice from the Holder
that it does not intend to sell additional
Registrable Securities; provided, that, if
the offering of Registrable Securities
pursuant to such registration statement is
terminated or suspended by any stop order,
injunction, or other order or requirement
of the SEC, the NASDAQ Stock Market,
Inc. (or any similar entity) or any other
governmental agency or court, the Sale
Period shall be extended by the number of
days during the period from and including
the date such stop order, injunction, or
other order or requirement becomes effective
to and including the date when such
termination or suspension no longer exists;
and provided further that (1) if the Holder
provides written notice to MPC no later than
the last day of the Sale Period that the
average of the total monthly volume for the
Common Stock traded on the NASDAQ SmallCap
Market for the first six (6) months of the
Sale Period was less than 550,000 shares,
and (2) the Holder has not sold all of the
Registrable Securities, then the Sale Period
shall be extended by one sixty (60) day
period;
(iii) promptly notify the Holder 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 to the
registration statement or any post-effective
amendment to the registration statement,
when the same has become effective and
furnish to the Holder of the Registrable
Securities covered by such registration
statement, without charge, such numbers of
copies of the registration statement, each
amendment and supplement thereto, the
prospectus, including a preliminary
prospectus, in conformity with the
requirements of the Securities Act and the
rules thereunder, and such other documents
as it may reasonably request in order to
facilitate the disposition of the
Registrable Securities;
(iv) use its reasonable best efforts to register,
qualify or exempt the Registrable Securities
covered by such registration statement under
such securities or Blue Sky laws of such
states as shall be reasonably necessary to
enable the Holder to dispose of the
Registrable Securities covered by such
registration statement; provided, that MPC
shall not be required in connection
therewith or as a condition thereto to
qualify to do business or to file a general
consent to service of process in any such
states;
(v) promptly notify the Holder of (i) the
issuance by the SEC of any stop order
suspending the effectiveness of the
registration statement or the initiation or
threatening of any proceedings for that
purpose or (ii) the receipt by MPC of any
notification with respect to the suspension
of the qualification of the Registrable
Securities for sale in any jurisdiction or
the initiation or threatening of any
proceeding for such purpose, and, in either
case, use its reasonable best efforts to
obtain the withdrawal of any such order or
suspension at the earliest practicable date.
(vi) promptly notify the Holder selling
Registrable Securities covered by such
registration statement at any time when a
prospectus relating thereto is required to
be delivered under the Securities Act of the
happening of any event as a result of which
the prospectus included in such
registration statement, as then in effect,
includes an untrue statement of a material
fact or omits to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading in the light of the circumstances
then existing or that the registration
statement, prospectus, prospectus amendment
or supplement or post-effective amendment
does not conform in all material respects to
the applicable requirements of the
Securities Act and the rules thereunder,
and, in such event, without delay prepare
and furnish to the Holder a registration
statement or prospectus supplemented or
amended to correct any such deficiencies;
(vii) use its commercially reasonable efforts to
cause all such Registrable Securities to be
listed or quoted, prior to the date of the
first sale of such Registrable Securities
pursuant to such registration, on such
securities exchange or quotation system on
which the Common Stock is then listed or
quoted; and
(viii) comply with all applicable rules and
regulations of the SEC; and
(ix) take all other reasonable steps necessary to
effect the registration of the Registrable
Securities contemplated thereby.
(b) The Holder shall provide (in writing and signed by the
Holder and stated to be specifically for use in the
related registration statement, preliminary prospectus,
prospectus, or other document incident thereto) all such
information and materials, including without limitation
the intended plan of distribution, and take all such
action as may be required in order to permit MPC to
comply with all applicable requirements of the SEC and
any applicable state securities laws and to obtain any
desired acceleration of the effective date of any
registration statement prepared and filed by MPC in
which the Holder's Registrable Securities will be
included.
(c) Upon receipt of any notice from MPC that MPC has become
aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed
pursuant to Section 2 hereof, as then in effect,
contains any 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, the Holder shall immediately discontinue
disposition of the Registrable Securities pursuant to
the registration statement covering the same until the
Holder's receipt of copies of a supplemented or amended
prospectus and, if so directed by MPC, deliver to MPC
all copies other than permanent file copies then in the
Holder's possession, of the prospectus covering the
Registrable Securities that was in effect prior to such
amendment or supplement. The Sale Period shall be
extended by the number of days in the period from and
including the date such notice is received by the Holder
to and including the date MPC gives notice that the
Holder may dispose of the Registrable Securities
pursuant to the registration statement.
(d) MPC shall provide, at the Holder's expense, such
assistance as the Holder may reasonably request to sell
the Registrable Securities on the NASDAQ SmallCap
Market.
5. Indemnification
(a) To the extent permitted by law, MPC shall indemnify and
hold harmless the Holder, each of its officers,
directors and each person controlling the Holder
(within the meaning of Section 15 of the Securities
Act), and, in connection with an underwritten offering
by the Holder, each underwriter, if any, and each person
who controls within the meaning of Section 15 of the
Securities Act any underwriter, against all expenses,
claims, losses, damages, and liabilities (or actions,
proceedings, or settlements in respect thereof) arising
out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular,
or other document (including any related registration
statement, notification, or the like) incident to the
registration of the Registrable Securities or based on
any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary
to make the statements therein not misleading or any
violation by MPC of the Securities Act or any rule or
regulation thereunder applicable to MPC that relates to
such registration and shall reimburse the Holder, each
of its officers, directors, and each person controlling
the Holder, each such underwriter, and each person who
controls any such underwriter, for any legal and any
other expenses reasonably incurred in connection with
investigating and defending or settling any such claim,
loss, damage, liability, or action, provided that MPC
shall not be liable in any such case to the extent that
any such claim, loss, damage, liability, or expense
arises out of or is based on any untrue statement or
omission based upon written information furnished to MPC
by the Holder or underwriter and stated to be
specifically for use therein. The indemnity agreement
contained in this Section 5(a) shall not apply to
amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is
effected without the consent of MPC (which consent shall
not be unreasonably withheld).
(b) To the extent permitted by law, the Holder shall
indemnify and hold harmless MPC, each of its officers
and directors, and each person, if any, who controls MPC
(within the meaning of Section 15 of the Securities Act)
against all expenses, claims, losses, damages, and
liabilities (or actions, proceedings, or settlements in
respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material
fact contained in any registration statement,
prospectus, offering circular, or other document
(including any related registration statement,
notification, or the like) incident to the registration
of the Registrable Securities or based on any omission
(or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, but only to the
extent that any such untrue statement or omission arises
out of or is based upon written information furnished to
MPC by the Holder and stated to be specifically for use
therein. The Holder shall reimburse MPC and each of its
officers and directors, and each person, if any, who
controls MPC (within the meaning of Section 15 of the
Securities Act), for any legal and any other expenses
reasonably incurred in connection with investigating and
defending or settling any such claim, loss, damage,
liability, or action described in this Section 5(b). The
indemnity agreement contained in this Section 5(b) shall
not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder
(which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this
Section 5 (the "Indemnified Party") shall give notice to
the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim (or threatened
claim) as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of
such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not be
unreasonably withheld), and the Indemnified Party may
participate in such defense at such party's expense, and
provided further that the failure of any Indemnifying
Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under
this Agreement, to the extent such failure is not
prejudicial. No Indemnifying Party, in the defense of
such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any
judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim (or threatened
claim) in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and
litigation resulting therefrom.
(d) If the Indemnification provided for in this Section 5 is
held by a court of competent jurisdiction to be
unavailable to an Indemnified Party with respect to any
loss, liability, claim, damage, or expense referred to
therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability,
claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and on the
Indemnified Party on the other in connection with the
statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any
other relevant equitable considerations. The relative
fault of the Indemnifying Party and of 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 to state a material
fact relates to information is supplied by the
Indemnifying Party or the Indemnified Party and the
parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such
statement or omission. 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 is not guilty of such fraudulent
misrepresentation.
6. Conditions Precedent to Registration
MPC's obligations under this Agreement to effect the registration of
any Registrable Securities are subject to the agreement to and the
performance by the Holder of such Registrable Securities of the
obligations of the Holder contained in this Agreement, including,
without limitation, the agreement by the Holder to pay certain
expenses incurred in connection with the sale of the Registrable
Securities pursuant to Section 3 hereof. Unless the Holder shall, if
requested by MPC, complete, execute and deliver all agreements,
questionnaires, indemnities, powers of attorney, underwriting
agreements, and other documents customary in a proposed registration
or deemed reasonably necessary by MPC to evidence the Holder's
agreements and obligations under this Agreement, MPC will have no
obligation to register the Holder's Registrable Securities.
7. Rule 144; Form S-3
MPC shall use its reasonable best efforts to file all reports
required to be filed by it under the Exchange Act so as to enable
the Holder to sell shares pursuant to the exemption contained in
Rule 144 under the Securities Act and to comply with the other
eligibility requirements for use of Form S-3 set forth in the
instructions to Form S-3.
8. Effect of Breach
In addition to any other statutory, equitable, or common law remedy
MPC may have, in the event the Holder materially breaches any of its
obligations pursuant to this Agreement and fails to cure the breach
within ten days of its receipt of notice from MPC of such breach,
the Holder shall have no further rights under Section 2 hereof and
this Agreement will thereupon terminate and be of no continued force
or effect.
9. Amendments and Waivers
Except as otherwise provided herein, any term of this Agreement may
be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of
MPC and the Holder. Any amendment or waiver effected in accordance
with this Section shall be binding upon any person or entity that is
granted certain rights under this Agreement and upon MPC.
10. Successors and Assigns
Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or
by reason of this Agreement, except as expressly provided in this
Agreement.
11. Notices
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be effective upon the
earlier of:
(a) hand delivery or delivery by telecopy or facsimile at
the address or number designated below if delivered on a
business day during normal business hours where such
notice is to be received, or the first business day
following such delivery if delivered other than on a
business day during normal business hours where such
notice is to be received;
(b) on the third business day following the date of mailing,
by registered or certified mail, return receipt
requested, postage prepaid; and
(c) on the first business day after delivery to an overnight
delivery service if delivered by overnight delivery
service to the following addresses:
If to Sagasco: Copy to:
Sagasco Amadeus Pty Limited Clayton Utz
Level 39, AMP Centre, 50 Bridge Street Levels 22-35, No. 1 O'Connell Street
Sydney, 2000 Australia Sydney NSW 2000 Australia
Attention: Company Secretary Attention: Graham Taylor, Esq.
Fax: +612 9235 1661 Fax: +612 8220 6700
If to MPC: Copy to:
Magellan Petroleum Corporation Murtha Cullina LLP
c/o G&O'D Inc. CityPlace I, 185 Asylum Street
Box 1146 Hartford, Connecticut 06103-2469
Madison, Connecticut 06443-1146 Attention: Timothy L. Largay, Esq.
Attention: Chief Executive Officer Fax: (860) 240-6150
Fax: (203) 245-8290
Any party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be
delivered by giving the other parties notice in the manner herein
set forth.
12. Governing Law
This Agreement, and any dispute, controversy or claim arising out of
or relating to this Agreement or a breach thereof, shall be governed
by, and construed in accordance with, the internal laws of the State
of Delaware without regard to the principles of conflict of laws
thereof.
13. Entire Agreement
This Agreement and the Share Sale Agreement and the other documents
referred to herein constitute the entire agreement of the parties
with respect to the subject matter hereof and supersedes any and all
prior agreements of the parties with respect to the subject matter
hereof.
14. Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery by facsimile or by
electronic transmission of an executed counterpart of any signature
page to this Agreement to be executed hereunder shall have the same
effectiveness as the delivery of a manually executed counterpart
thereof.
15. Severability
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
16. Titles and Subtitles
The titles and subtitles used in this Agreement are for convenience
only and are not to be considered in construing or interpreting any
term or provision of this Agreement.
IN WITNESS WHEREOF, MPC and Sagasco have executed this Registration
Rights Agreement as of the day and year first above written.
MPC:
MAGELLAN PETROLEUM CORPORATION
By:/s/ James R. Joyce
--------------------------
Name: James R. Joyce
Title: President
SAGASCO:
SAGASCO AMADEUS PTY LIMITED
By:______________________________________
Name:
Title: