EXHIBIT 10.17
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
May 8, 2006, by and among: Tremisis Energy Acquisition Corporation, a Delaware
corporation (the "Company"), and the undersigned parties listed under Investor
on the signature page hereto (each, an "Investor" and collectively, the
"Investors").
WHEREAS, the Investors, formerly stockholders of RAM Energy, Inc., a
Delaware corporation ("RAM"), have received shares of Common Stock in exchange
for the shares of stock of RAM formerly held by them in connection with a merger
by which RAM has become a wholly owned subsidiary of the Company (the "Merger");
WHEREAS, the Investors and the Company desire to enter into this Agreement
to provide the Investors with certain rights relating to the registration of
shares of Common Stock held by them;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following capitalized terms used herein have the
following meanings:
"Agreement" means this Agreement, as amended, restated, supplemented,
or otherwise modified from time to time.
"Closing Date" shall mean the date the Merger is consummated.
"Commission" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act or the Exchange
Act.
"Common Stock" means the common stock, par value $0.0001 per share, of
the Company.
"Company" is defined in the preamble to this Agreement.
"Demand Registration" is defined in Section 2.1.1.
"Demanding Holder" is defined in Section 2.1.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, all
as the same shall be in effect at the time.
"Form S-3" is defined in Section 2.3.
"Indemnified Party" is defined in Section 4.3.
"Indemnifying Party" is defined in Section 4.3.
"Investor" is defined in the preamble to this Agreement.
"Investor Indemnified Party" is defined in Section 4.1.
"Maximum Number of Shares" is defined in Section 2.2.2.
"Merger" is defined in the first recital to this Agreement.
"Notices" is defined in Section 6.3.
"Piggy-Back Registration" is defined in Section 2.2.1.
"RAM" is defined in the first recital to this Agreement.
"Register," "registered" and/or "registration" means a registration
effected by preparing and filing a registration statement or similar
document in compliance with the requirements of the Securities Act, and the
applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
"Registrable Securities" mean all of the shares of Common Stock issued
to Investors in the Merger. Registrable Securities include any warrants,
shares of capital stock or other securities of the Company issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of such shares of Common Stock. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when: (a) a Registration Statement with respect to the sale of
such securities shall have become effective under the Securities Act and
such securities shall have been sold, transferred, disposed of or exchanged
in accordance with such Registration Statement; (b) such securities shall
have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent public distribution of them shall not require
registration under the Securities Act; (c) such securities shall have
ceased to be outstanding, or (d) such securities are freely salable under
Rule 144(k) without volume limitations.
"Registration Statement" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the
rules and regulations promulgated thereunder for a public offering and sale
of Common Stock (other than a registration statement on Form S-4 or Form
S-8, or their successors, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets of
another entity).
"Release Date" means the date that is two years after the Closing
Date.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1. Request for Registration. At any time and from time to
time, but not prior to three (3) months following any underwritten
public offering by the Company, and, except for registrations effected
pursuant to Section 2.3, not earlier than the Release Date, the
holders of a majority-in-interest of the Registrable Securities held
by the Investors or the transferees of the Investors, may make a
written demand for registration under the Securities Act of all or
part of their Registrable Securities (a "Demand Registration");
provided, however, that during the period ending December 31, 2008, no
such demand shall be made except with the prior written consent of
holders of Registrable Securities owing 80% of the then outstanding
Registrable Securities. Any demand for a Demand Registration shall
specify the number of shares of Registrable Securities proposed to be
sold and the intended method(s) of distribution thereof. Each Demand
Registration, other than one effected pursuant to Section 2.3, shall
be subject to an aggregate price threshold of not less than
$10,000,000. The Company will notify all holders of Registrable
Securities of the demand, and each holder of Registrable Securities
who wishes to include all or a portion of such holder's Registrable
Securities in the Demand Registration (each such holder including
shares of Registrable Securities in such registration, a "Demanding
Holder") shall so notify the Company within thirty (30) days after the
receipt by the holder of the notice from the Company. Upon any such
request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to
the provisos set forth in Section 3.1.1. The Company shall not be
obligated to effect more than an aggregate of two (2) Demand
Registrations under this Section 2.1.1 in respect of Registrable
Securities other than those effected pursuant to Section 2.3.
2.1.2. Effective Registration. A registration will not count as a
Demand Registration until the Registration Statement filed with the
Commission with respect to such Demand Registration has been declared
effective and the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, however, that if,
after such Registration Statement has been declared effective, the
offering of Registrable Securities pursuant to a Demand Registration
is interfered with by any stop order or injunction of the Commission
or any court, the Registration Statement with respect to such Demand
Registration will be deemed not to have been declared effective,
unless and until, (i) such stop order or injunction is removed,
rescinded or otherwise terminated, and (ii) a majority-in-interest of
the Demanding Holders thereafter elect to continue the offering;
provided, further, that the Company shall not be obligated to file a
second Registration Statement until a Registration Statement that has
been filed is counted as a Demand Registration or is terminated.
2.1.3. Underwritten Offering. If a majority-in-interest of the
Demanding Holders so elect and such holders so advise the Company as
part of their written demand for a Demand Registration, the offering
of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. 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 to the extent provided herein. All
Demanding 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 by a majority-in-interest of the holders initiating the
Demand Registration.
2.2 Piggy-Back Registration.
2.2.1. Piggy-Back Rights. If at any time on or after the Closing
Date the Company proposes to file a Registration Statement under the
Securities Act with respect to an offering of equity securities, or
securities or other obligations exercisable or exchangeable for, or
convertible into, equity securities, by the Company for its own
account or for stockholders of the Company for their account (or by
the Company and by stockholders of the Company), other than a
Registration Statement (i) filed in connection with any employee stock
option or other benefit plan, (ii) for an exchange offer or offering
of securities solely to the Company's existing stockholders, (iii) for
an offering of debt that is convertible into equity securities of the
Company or (iv) for a dividend reinvestment plan, then the Company
shall (x) give written notice of such proposed filing to the holders
of Registrable Securities as soon as practicable but in no event less
than twenty (20) days before the anticipated filing date, which notice
shall describe the amount and type of securities to be included in
such offering, the intended method(s) of distribution, and the name of
the proposed managing Underwriter or Underwriters, if any, of the
offering, and (y) offer to the holders of Registrable Securities in
such notice the opportunity to register the sale of such number of
shares of Registrable Securities as such holders may request in
writing within ten (10) days following receipt of such notice (a
"Piggy-Back Registration"). The Company shall cause such Registrable
Securities to be included in such registration and shall use its best
efforts to cause the managing Underwriter or Underwriters of a
proposed underwritten offering to permit the Registrable Securities
requested to be included in a Piggy-Back Registration to be included
on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing
to distribute their securities through a Piggy-Back Registration that
involves an Underwriter or Underwriters shall enter into an
underwriting agreement in customary form with the Underwriter or
Underwriters selected for such Piggy-Back Registration.
2.2.2. Reduction of Offering. If the managing Underwriter or
Underwriters for a Piggy-Back Registration that is to be an
underwritten offering advises the Company and the holders of
Registrable Securities in writing that the dollar amount or number of
shares of Common Stock which the Company desires to sell, taken
together with shares of Common Stock, if any, as to which registration
has been demanded pursuant to written contractual arrangements with
persons other than the holders of Registrable Securities hereunder,
the Registrable Securities as to which registration has been requested
under this Section 2.2, and the shares of Common Stock, if any, as to
which registration has been requested pursuant to the written
contractual piggy-back registration rights of other stockholders of
the Company, exceeds the maximum number of shares that, in the
reasonable judgment of the Underwriters, can be effectively sold in
the market at that time ("Maximum Number of Shares"), then the Company
shall include in any such registration:
(i) If the registration is undertaken for the Company's
account: (A) first, the shares of Common Stock or other
securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (B) second, to
the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (A), the shares of Common Stock, if
any, including the Registrable Securities, as to which
registration has been requested pursuant to written contractual
piggy-back registration rights of security holders (pro rata in
accordance with the number of shares of Common Stock which each
such person has actually requested to be included in such
registration, regardless of the number of shares of Common Stock
with respect to which such persons have the right to request such
inclusion) that can be sold without exceeding the Maximum Number
of Shares; and
(ii) If the registration is a "demand" registration
undertaken at the demand of persons other than the holders of
Registrable Securities pursuant to written contractual
arrangements with such persons, (A) first, the shares of Common
Stock for the account of the demanding persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to
the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (A), the shares of Common Stock or
other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Shares; and (C)
third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (A) and (B), the shares
of Common Stock, if any, including the Registrable Securities, as
to which registration has been requested pursuant to written
contractual piggy-back registration rights of security holders
(pro rata in accordance with the number of shares of Common Stock
which each such person has actually requested to be included in
such registration, regardless of the number of shares of Common
Stock with respect to which such persons have the right to
request such inclusion).
2.2.3. Withdrawal. Any holder of Registrable Securities may elect
to withdraw such holder's request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to
the Company of such request to withdraw prior to the effectiveness of
the Registration Statement. The Company may also elect to withdraw a
registration statement at any time prior to the effectiveness of the
Registration Statement. Notwithstanding any such withdrawal, the
Company shall pay expenses incurred by the holders of Registrable
Securities in connection with such Piggy-Back Registration as provided
in Section 3.3.
2.3 Registrations on Form S-3. The holders of Registrable Securities
may at any time and from time to time request in writing that the Company
register the resale of any or all of such Registrable Securities on Form
S-3 or any similar short-form registration which may be available at such
time ("Form S-3"); provided, however, that during the period ending
December 31, 2008, no such request shall be made except with the prior
written consent of holders of Registrable Securities owing 80% of the then
outstanding Registrable Securities. The number of shares of Common Stock
received by the Investors in the Merger that shall be eligible for sale
under a Form S-3 shall be limited to (a) 20% of such shares during the
period commencing on the day that is six (6) months after the Closing Date
and continuing through the day immediately preceding the day that is one
(1) year after the Closing Date, (b) an additional 20% (an aggregate of
40%) of such shares during the period commencing on the day that is one
year after the Closing Date and continuing through the day immediately
preceding the day that is eighteen (18) months after the Closing Date, and
(c) an additional 20% (an aggregate of 60%) of such shares during the
period commencing on the day that is eighteen (18) months after the Closing
Date and continuing through the day immediately preceding the day that is
two (2) years after the Closing Date; and provided, further, however, that
the Company shall not be obligated to effect such request through an
underwritten offering. Upon receipt of such written request, the Company
will promptly give written notice of the proposed registration to all other
holders of Registrable Securities, and, as soon as practicable thereafter,
effect the registration of all or such portion of such holder's or holders'
Registrable Securities as are specified in such request, together with all
or such portion of the Registrable Securities of any other holder or
holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to
effect any such registration pursuant to this Section 2.3: (i) if Form S-3
is not available for such offering; or (ii) if the holders of the
Registrable Securities, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at any aggregate
price to the public of less than $10,000,000. Registrations effected
pursuant to this Section 2.3 shall not be counted as Demand Registrations
effected pursuant to Section 2.1. Registrable Securities registered
pursuant to a Form S-3 registration under this Section shall still remain
subject to the limitations of the Lock-Up Agreements dated October 20,
2005, executed by the Investors in favor of the Company.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect
the registration of any Registrable Securities pursuant to Section 2, the
Company shall use its best efforts to effect the registration and sale of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof as expeditiously as practicable, and in connection
with any such request:
3.1.1. Filing Registration Statement. The Company shall, as
expeditiously as possible and in any event within sixty (60) days
after receipt of a request for a Demand Registration pursuant to
Section 2.1, prepare and file with the Commission a Registration
Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be
available for the sale of all Registrable Securities to be registered
thereunder in accordance with the intended method(s) of distribution
thereof, and shall use its best efforts to cause such Registration
Statement to become and remain effective for the period required by
Section 3.1.3; provided, however, that the Company shall have the
right to defer any Demand Registration for up to thirty (30) days, and
any Piggy-Back Registration for such period as may be applicable to
deferment of any demand registration to which such Piggy-Back
Registration relates, in each case if the Company shall furnish to the
holders a certificate signed by the Chief Executive Officer of the
Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be materially detrimental to the
Company and its stockholders for such Registration Statement to be
effected at such time; provided further, however, that the Company
shall not have the right to exercise the right set forth in the
immediately preceding proviso more than once in any 365-day period in
respect of a Demand Registration hereunder.
3.1.2. Copies. The Company shall, prior to filing a Registration
Statement or prospectus, or any amendment or supplement thereto,
furnish without charge to the holders of Registrable Securities
included in such registration, and such holders' legal counsel, copies
of such Registration Statement as proposed to be filed, each amendment
and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such Registration Statement (including each
preliminary prospectus), and such other documents as the holders of
Registrable Securities included in such registration or legal counsel
for any such holders may request in order to facilitate the
disposition of the Registrable Securities owned by such holders.
3.1.3. Amendments and Supplements. The Company shall prepare and
file with the Commission such amendments, including post-effective
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 in compliance with the
provisions of the Securities Act until all Registrable Securities and
other securities covered by such Registration Statement have been
disposed of in accordance with the intended method(s) of distribution
set forth in such Registration Statement (which period shall not
exceed the sum of one hundred eighty (180) days plus any period during
which any such disposition is interfered with by any stop order or
injunction of the Commission or any governmental agency or court) or
such securities have been withdrawn.
3.1.4. Notification. After the filing of a Registration
Statement, the Company shall promptly, and in no event more than two
(2) business days after such filing, notify the holders of Registrable
Securities included in such Registration Statement of such filing, and
shall further notify such holders promptly and confirm such advice in
writing in all events within two (2) business days of the occurrence
of any of the following: (i) when such Registration Statement becomes
effective; (ii) when any post-effective amendment to such Registration
Statement becomes effective; (iii) the issuance or threatened issuance
by the Commission of any stop order (and the Company shall take all
actions required to prevent the entry of such stop order or to remove
it if entered); and (iv) any request by the Commission for any
amendment or supplement to such Registration Statement or any
prospectus relating thereto or for additional information or of the
occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of the securities covered by such Registration Statement,
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, and
promptly make available to the holders of Registrable Securities
included in such Registration Statement any such supplement or
amendment; except that before filing with the Commission a
Registration Statement or prospectus or any amendment or supplement
thereto, including documents incorporated by reference, the Company
shall furnish to the holders of Registrable Securities included in
such Registration Statement and to the legal counsel for any such
holders, copies of all such documents proposed to be filed
sufficiently in advance of filing to provide such holders and legal
counsel with a reasonable opportunity to review such documents and
comment thereon, and the Company shall not file any Registration
Statement or prospectus or amendment or supplement thereto, including
documents incorporated by reference, to which such holders or their
legal counsel shall object.
3.1.5. State Securities Laws Compliance. The Company shall use
its best efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or "blue
sky" laws of such jurisdictions in the United States as the holders of
Registrable Securities included in such Registration Statement (in
light of their intended plan of distribution) may request and (ii)
take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or
approved by such other Governmental Authorities as may be necessary by
virtue of the business and operations of the Company and do any and
all other acts and things that may be necessary or advisable to enable
the holders of Registrable Securities included in such Registration
Statement to consummate the disposition of such Registrable Securities
in such jurisdictions; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
paragraph (e) or subject itself to taxation in any such jurisdiction.
3.1.6. Agreements for Disposition. The Company shall enter into
customary agreements (including, if applicable, an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of such Registrable Securities. The representations, warranties and
covenants of the Company in any underwriting agreement which are made
to or for the benefit of any Underwriters, to the extent applicable,
shall also be made to and for the benefit of the holders of
Registrable Securities included in such registration statement. No
holder of Registrable Securities included in such registration
statement shall be required to make any representations or warranties
in the underwriting agreement except, if applicable, with respect to
such holder's organization, good standing, authority, title to
Registrable Securities, lack of conflict of such sale with such
holder's material agreements and organizational documents, and with
respect to written information relating to such holder that such
holder has furnished in writing expressly for inclusion in such
Registration Statement.
3.1.7. Cooperation. The principal executive officer of the
Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members
of the management of the Company shall cooperate fully in any offering
of Registrable Securities hereunder, which cooperation shall include,
without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related
documents, and participation in meetings with Underwriters, attorneys,
accountants and potential investors.
3.1.8. Records. The Company shall make available for inspection
by the holders of Registrable Securities included in such Registration
Statement, any Underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included
in such Registration Statement or any Underwriter, all financial and
other records, pertinent corporate documents and properties of the
Company, as shall be necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information requested by any of them in
connection with such Registration Statement.
3.1.9. Opinions and Comfort Letters. The Company shall furnish to
each holder of Registrable Securities included in any Registration
Statement a signed counterpart, addressed to such holder, of (i) any
opinion of counsel to the Company delivered to any Underwriter and
(ii) any comfort letter from the Company's independent public
accountants delivered to any Underwriter. In the event no legal
opinion is delivered to any Underwriter, the Company shall furnish to
each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an
opinion of counsel to the Company to the effect that the Registration
Statement containing such prospectus has been declared effective and
that no stop order is in effect.
3.1.10. Earnings Statement. The Company shall comply with all
applicable rules and regulations of the Commission and the Securities
Act, and make available to its stockholders, as soon as practicable,
an earnings statement covering a period of twelve (12) months,
beginning within three (3) months after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11. Listing. The Company shall use its best efforts to cause
all Registrable Securities included in any registration to be listed
on such exchanges or otherwise designated for trading in the same
manner as similar securities issued by the Company are then listed or
designated or, if no such similar securities are then listed or
designated, in a manner satisfactory to the holders of a majority of
the Registrable Securities included in such registration.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 3.1.4(iv), or, in the case of a resale registration on Form S-3
pursuant to Section 2.3 hereof, upon any suspension by the Company,
pursuant to a written insider trading compliance program adopted by the
Company's Board of Directors, of the ability of all "insiders" covered by
such program to transact in the Company's securities because of the
existence of material non-public information, each holder of Registrable
Securities included in any registration shall immediately discontinue
disposition of such Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such holder receives
the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or
the restriction on the ability of "insiders" to transact in the Company's
securities is removed, as applicable, and, if so directed by the Company,
each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of
such notice.
3.3 Registration Expenses. The Company shall bear all costs and
expenses incurred in connection with any Demand Registration pursuant to
Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any
registration on Form S-3 effected pursuant to Section 2.3, and all expenses
incurred in performing or complying with its other obligations under this
Agreement, whether or not the Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees; (ii)
fees and expenses of compliance with securities or "blue sky" laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities); (iii) printing expenses;
(iv) the Company's internal expenses (including, without limitation, all
salaries and expenses of its officers and employees); (v) the fees and
expenses incurred in connection with the listing of the Registrable
Securities as required by Section 3.1.11; (vi) National Association of
Securities Dealers, Inc. fees; (vii) fees and disbursements of counsel for
the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs
associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1.9); (viii) the fees and expenses of any special
experts retained by the Company in connection with such registration and
(ix) the fees and expenses of one legal counsel selected by the holders of
a majority-in-interest of the Registrable Securities included in such
registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an
underwritten offering, all selling stockholders and the Company shall bear
the expenses of the underwriter pro rata in proportion to the respective
amount of shares each is selling in such offering.
3.4 Information. The holders of Registrable Securities shall provide
such information as may reasonably be requested by the Company, or the
managing Underwriter, if any, in connection with the preparation of any
Registration Statement, including amendments and supplements thereto, in
order to effect the registration of any Registrable Securities under the
Securities Act pursuant to Section 2 and in connection with the Company's
obligation to comply with federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Investor and each other holder of Registrable
Securities, and each of their respective officers, employees, affiliates,
directors, partners, members, attorneys and agents, and each person, if
any, who controls an Investor and each other holder of Registrable
Securities (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) (each, an "Investor Indemnified Party"),
from and against any expenses, losses, judgments, claims, damages or
liabilities, whether joint or several, arising out of or based upon any
untrue statement (or allegedly untrue statement) of a material fact
contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to such
Registration Statement, or arising out of or based upon any omission (or
alleged omission) to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation
by the Company of the Securities Act or any rule or regulation promulgated
thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration; and the
Company shall promptly reimburse the Investor Indemnified Party for any
legal and any other expenses reasonably incurred by such Investor
Indemnified Party in connection with investigating and defending any such
expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent
that any such expense, loss, claim, damage or liability arises out of or is
based upon any untrue statement or allegedly untrue statement or omission
or alleged omission made in such Registration Statement, preliminary
prospectus, final prospectus, or summary prospectus, or any such amendment
or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by such selling holder expressly for
use therein. The Company also shall indemnify any Underwriter of the
Registrable Securities, their officers, affiliates, directors, partners,
members and agents and each person who controls such Underwriter on
substantially the same basis as that of the indemnification provided above
in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each selling
holder of Registrable Securities will, in the event that any registration
is being effected under the Securities Act pursuant to this Agreement of
any Registrable Securities held by such selling holder, indemnify and hold
harmless the Company, each of its directors and officers and each
underwriter (if any), and each other person, if any, who controls such
selling holder or such underwriter within the meaning of the Securities
Act, against any losses, claims, judgments, damages or liabilities, whether
joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or allegedly untrue statement of a material fact
contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the
Registration Statement, or arise out of or are based upon any omission or
the alleged omission to state a material fact required to be stated therein
or necessary to make the statement therein not misleading, if the statement
or omission was made in reliance upon and in conformity with information
furnished in writing to the Company by such selling holder expressly for
use therein, and shall reimburse the Company, its directors and officers,
and each such controlling person for any legal or other expenses reasonably
incurred by any of them in connection with investigation or defending any
such loss, claim, damage, liability or action. Each selling holder's
indemnification obligations hereunder shall be several and not joint and
shall be limited to the amount of any net proceeds actually received by
such selling holder.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
any person of any notice of any loss, claim, damage or liability or any
action in respect of which indemnity may be sought pursuant to Section 4.1
or 4.2, such person (the "Indemnified Party") shall, if a claim in respect
thereof is to be made against any other person for indemnification
hereunder, notify such other person (the "Indemnifying Party") in writing
of the loss, claim, judgment, damage, liability or action; provided,
however, that the failure by the Indemnified Party to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any
liability which the Indemnifying Party may have to such Indemnified Party
hereunder, except and solely to the extent the Indemnifying Party is
actually prejudiced by such failure. If the Indemnified Party is seeking
indemnification with respect to any claim or action brought against the
Indemnified Party, then the Indemnifying Party shall be entitled to
participate in such claim or action, and, to the extent that it wishes,
jointly with all other Indemnifying Parties, to assume control of the
defense thereof with counsel satisfactory to the Indemnified Party. After
notice from the Indemnifying Party to the Indemnified Party of its election
to assume control of the defense of such claim or action, the Indemnifying
Party shall not be liable to the Indemnified Party for any legal or other
expenses subsequently incurred by the Indemnified Party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that in any action in which both the Indemnified Party and the
Indemnifying Party are named as defendants, the Indemnified Party shall
have the right to employ separate counsel (but no more than one such
separate counsel) to represent the Indemnified Party and its controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid
by such Indemnifying Party if, based upon the written opinion of counsel of
such Indemnified Party, representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect
any settlement of any claim or pending or threatened proceeding in respect
of which the Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such
judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
4.4 Contribution.
4.4.1. If the indemnification provided for in the foregoing
Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in
respect of any loss, claim, damage, liability or action referred to
herein, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect
the relative fault of the Indemnified Parties and the Indemnifying
Parties in connection with the actions or omissions which resulted in
such loss, claim, damage, liability or action, as well as any other
relevant equitable considerations. The relative fault of any
Indemnified Party and any Indemnifying 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 such
Indemnified Party or such Indemnifying Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding Section 4.4.1. The amount paid or payable by an
Indemnified Party as a result of any loss, claim, damage, liability or
action referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no holder of
Registrable Securities shall be required to contribute any amount in
excess of the dollar amount of the net proceeds (after payment of any
underwriting fees, discounts, commissions or taxes) actually received
by such holder from the sale of Registrable Securities which gave rise
to such contribution obligation. 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.
5. UNDERWRITING AND DISTRIBUTION.
5.1 Rule 144. The Company covenants that it shall file any reports
required to be filed by it under the Securities Act and the Exchange Act
and shall take such further action as the holders of Registrable Securities
may reasonably request, all to the extent required from time to time to
enable such holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided
by Rule 144 under the Securities Act, as such Rules may be amended from
time to time, or any similar Rule or regulation hereafter adopted by the
Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and warrants
that, except as disclosed to Investors in the Agreement and Plan of Merger,
dated October __, 2005, pursuant to which the Merger was effected, no
person, other than a holder of the Registrable Securities, has any right to
require the Company to register any shares of the Company's capital stock
for sale or to include shares of the Company's capital stock in any
registration filed by the Company for the sale of shares of capital stock
for its own account or for the account of any other person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the
rights, duties and obligations of the Company hereunder may not be assigned
or delegated by the Company in whole or in part. This Agreement and the
rights, duties and obligations of the holders of Registrable Securities
hereunder may be freely assigned or delegated by such holder of Registrable
Securities in conjunction with and to the extent of any transfer of
Registrable Securities by any such holder. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of
each of the parties and their respective successors and the permitted
assigns of the Investor or holder of Registrable Securities or of any
assignee of the Investor or holder of Registrable Securities. This
Agreement is not intended to confer any rights or benefits on any persons
that are not party hereto other than as expressly set forth in Article 4
and this Section 6.2.
6.3 Notices. All notices, demands, requests, consents, approvals or
other communications (collectively, "Notices") required or permitted to be
given hereunder or which are given with respect to this Agreement shall be
in writing and shall be personally served, delivered by reputable air
courier service with charges prepaid, or transmitted by hand delivery,
telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission
if personally served or transmitted by telegram, telex or facsimile;
provided, that if such service or transmission is not on a business day or
is after normal business hours, then such notice shall be deemed given on
the next business day. Notice otherwise sent as provided herein shall be
deemed given on the next business day following timely delivery of such
notice to a reputable air courier service with an order for next-day
delivery.
To the Company:
Tremisis Energy Acquisition Corporation
1775 Broadway
Suite 604
New York, New York 10019
Attention: Chairman
with a copy to:
Graubard Miller
405 Lexington Avenue
New York, NY 10174-1901
Attention: David Miller
To an Investor, to:
Larry E. Lee
RAM Energy, Inc.
5100 E. Skelly Drive
Suite 650
Tulsa, Oklahoma 74135
Danish Knights, A Limited Partnership
Attn: Britani Talley Bowman
8620 Berkwick Drive
Plano, TX 75025
C. David Stinson
McAfee & Taft, A Professional Corporation
211 North Robinson, 10th Floor
Oklahoma City, Oklahoma 73102-7103
with a copy to:
C. David Stinson
McAfee & Taft, A Professional Corporation
211 North Robinson, 10th Floor
Oklahoma City, Oklahoma 73102-7103
6.4 Severability. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other
term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall
be added as a part of this Agreement a provision as similar in terms to
such invalid or unenforceable provision as may be possible and be valid and
enforceable.
6.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties
with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations
and discussions between the parties, whether oral or written.
6.7 Modifications and Amendments. No amendment, modification or
termination of this Agreement shall be binding upon any party unless
executed in writing by such party.
6.8 Titles and Headings. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, provided
that such waiver will not be effective against the waiving party unless it
is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof nor of any other agreement or provision herein contained. No waiver
or extension of time for performance of any obligations or acts shall be
deemed a waiver or extension of the time for performance of any other
obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails to
observe or perform any covenant or agreement to be observed or performed
under this Agreement, the Investor or any other holder of Registrable
Securities may proceed to protect and enforce its rights by suit in equity
or action at law, whether for specific performance of any term contained in
this Agreement or for an injunction against the breach of any such term or
in aid of the exercise of any power granted in this Agreement or to enforce
any other legal or equitable right, or to take any one or more of such
actions, without being required to post a bond. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and
each such right, power or remedy shall be cumulative and in addition to any
other right, power or remedy, whether conferred by this Agreement or now or
hereafter available at law, in equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by, interpreted
under, and construed in accordance with the law of the State of Delaware,
without giving effect to any choice-of-law provisions thereof that would
compel the application of the substantive laws of any other jurisdiction.
6.12 Waiver of Trial by Jury. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or
otherwise) arising out of, connected with or relating to this Agreement,
the transactions contemplated hereby, or the actions of the Investor in the
negotiation, administration, performance or enforcement hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
TREMISIS ENERGY
ACQUISITION CORPORATION
By: /s/ Lawrence S. Coben
Name: Lawrence S. Coben
Title: Chairman of the Board
INVESTORS:
/s/ Larry E. Lee
Larry E. Lee
DANISH KNIGHTS, A LIMITED PARTNERSHIP,
A Texas Limited Partnership
By: Dannebrog Corporation, General Partner
By: /s/ Britani Talley Bowman
Britani Talley Bowman, President
/s/ C. David Stinson
C. David Stinson