REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of June 23, 2006, by and between Indigo-Energy, Inc., a Nevada
corporation (the "Company"), and HUB Energy, LLC, a Pennsylvania limited
liability company (the "Holder" and together with the Company, the "Parties"
each a "Party").
This Agreement is made pursuant to the Advisory Services Agreement, dated
as of June 23, 2006 by and between the Parties (the "Advisory Services
Agreement"). The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms in the Advisory Services Agreement.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Common Stock" means any shares of common stock of the Company,
par value $.001 per share and any options, warrants or other rights to
repurchase such securities.
(b) "Conversion Shares" means the Common Stock underlying the
Company's Preferred Stock;
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended;
(d) "GAAP" means generally accepted accounting principles, as in
effect from time to time in the United States, consistently applied;
(e) "Person" means a natural person, partnership, corporation,
business trust, association, joint venture or other entity or a government or
agency or political subdivision thereof;
(f) "Prospectus" means the prospectus included in any Registration
Statement, as supplemented by any and all prospectus supplements and as amended
by any and all post-effective amendments and including all material incorporated
by reference in such prospectus;
(g) "Registration" means the registration described in Section 2
hereof;
(h) "Registrable Securities" means the Conversion Shares and Common
Stock, owned by the Holder and issued pursuant to the Advisory Services
Agreement;
(i) "Registration Statement" means the registration statement which
covers Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus included in such registration statement, amendments
(including post-effective amendments) and supplements to such registration
statement, and all exhibits to and all material incorporated by reference in
such registration statement;
(j) "Restricted Stock" means any shares of Common Stock of the
Company issued to Holder for which a Registration Statement has not become
effective;
(k) "SEC" means the U.S. Securities and Exchange Commission.
(l) "Securities Act" means the Securities Act of 1933, as from time
to time amended;
(m) "Selling Holder" means any holder of Restricted Stock who
exercises any Registration Rights granted hereunder; and
(n) "Share" means the Common Stock of the Company.
2. Piggyback Registration Rights. Subject to Section 6, if at any time or
from time to time, the Company proposes to register any of its equity securities
under the Securities Act with respect to an offering for its own account or for
the account of others (other than a registration statement on Form S-4 or S-8
(or any successor form) or any other registration statement relating solely to
employee benefit plans or filed in connection with an exchange offer, or a
transaction to which Rule 145 (or any successor provision) under the Securities
Act applies, then the Company shall in each case give written notice of such
proposed filing to the Holder as soon as practicable (but no later than twenty
(20) business days) before the anticipated initial filing date, and such notice
shall offer the Holder the opportunity to register such number of shares of
Restricted Stock as such Holder may request. The Holder desiring to have
Restricted Stock included in such registration statement shall so advise the
Company in writing within ten (10) business days after the date on which the
Company's notice is so given, setting forth the number of shares of Restricted
Stock for which registration is requested. The Company shall, subject to the
further provisions of this Agreement, use its reasonable best efforts to cause
the managing underwriter or underwriters to permit the Holder of the Restricted
Stock requested to be registered under the Securities Act (and any related
qualification or registration under blue sky laws) to include such registered
Stock in such offering on the same terms and conditions as any similar
securities of the Company therein, and to include such Registered Stock within
any underwriting involved therein all of the Restricted Stock that the Holder
has requested to be registered. The right of the Holder to registration pursuant
to this Section 2 in connection with an underwritten offering by the Company
shall, unless the Company otherwise assents, be conditioned upon such Holder's
participation as a seller in such underwritten offering and its execution of an
underwriting agreement with the managing underwriter or underwriters selected by
the Company. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering deliver a written opinion to the Company that
either because of (a) the kind of securities that the Company, the Holder and
any other persons or entities intended to be included in such offering or (b)
the size of the offering that the Company, the Holder and any other persons or
entities intend to make, the success of the offering would be materially and
adversely affected by inclusion of the Restricted Stock requested to be
included, then (i) in the event that the size of the offering is the basis of
such managing underwriter's opinion, the number of shares of Restricted Stock to
be registered and offered for the account of the Holder, and any other persons
or entities intended to be included in such offering, shall be reduced pro rata
on the basis of the number of securities requested by such Holder to be
registered and offered to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter or underwriters (provided that if securities are being
registered and offered for the account of other persons or entities in addition
to the Company, such reduction shall not be proportionally greater than any
similar reductions imposed on such other persons or entities) and (ii) in the
event that the combination of securities to be offered is the basis of such
managing underwriters opinion, (x) the Restricted Stock to be included in such
registration and offering shall be reduced as described in clause (i) above or
(y) if such actions would, in the reasonable judgment of the managing
underwriter, be insufficient to substantially eliminate the adverse effect that
inclusion of the Restricted Stock requested to be included would have on such
offering, such Restricted Stock will be excluded entirely from such registration
and offering. Any Restricted Stock excluded from an underwriting shall, if
applicable, be withdrawn from registration and shall not, without the consent of
the Company, be transferred in a public distribution prior to the earlier of
ninety (90) days (or such other shorter period of time as the managing
underwriter may require) after the effective date of the registration statement
or ninety (90) days after the date the Holder of such Restricted Stock are
notified of such exclusion.
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3. Registration Procedures. Whenever the Holder of Restricted Stock has
requested pursuant to Section 2 that any Restricted Stock be registered, the
Company shall, subject to the provisions of Section 3 hereof, use its reasonable
best efforts to effect the registration and the sale or distribution of such
Restricted Stock in accordance with the intended method of disposition thereof
as promptly as practicable, and in connection with any such request, the Company
shall:
(a) prepare and file with the SEC, a Registration Statement on any
form for which the Company then qualifies and which counsel for the Company
shall deem appropriate and which form shall be available for the sale or
distribution of such Restricted Stock in accordance with the intended method of
distribution thereof, and use its reasonable best efforts to cause such
Registration Statement to become effective; provided that, after the filing of
the Registration Statement, the Company shall promptly notify the Selling Holder
of Restricted Stock of any stop order issued or, to the knowledge of the
Company, threatened by the SEC and take all reasonable actions to prevent the
entry of such stop order or to remove it if entered;
(b) 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 for a period of
not less than ninety (90) days or such shorter period as shall terminate when
the distribution of all Restricted Stock covered by such Registration Statement
shall have terminated (but not before the expiration of the ninety day (90)
period referred to in Section of the Securities Act and Rule 174 thereunder, if
applicable) and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
Selling Holder thereof set forth in such Registration Statement;
(c) as soon as reasonably practicable, furnish to the Selling
Holder, prior to filing a Registration Statement, copies of such Registration
Statement as proposed to be filed and thereafter furnish to such Selling Holder
such number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such registration Statement
(including each preliminary Prospectus) and such other documents as such Selling
Holder may reasonably request in order to facilitate the disposition of the
Restricted Stock owned by such Selling Holder;
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(d) use its best efforts to register or qualify such Restricted
Stock under such other securities or blue sky laws of such jurisdictions within
the United States and Canada as the Selling Holder reasonably (in light of such
Selling Holder's intended plan of distribution) requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Selling Holder to consummate the disposition in such jurisdictions of the
Restricted Stock owned by such Selling Holder; provided that the Company shall
not be required to (i) qualify generally to do business or file a general
consent to service of process in any jurisdiction or (ii) take any action that
would subject itself to taxation in any such jurisdiction;
(e) promptly notify the Selling Holder of such Restricted Stock, at
any time when a Prospectus relating thereto is required to be delivered under
the Securities Act, of the occurrence of any event known to the Company
requiring the preparation of a supplement or amendment to such Prospectus so
that, as thereafter delivered to the purchasers or recipients of such Restricted
Stock, 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
Selling Holder any such supplement or amendment;
(f) enter into an underwriting agreement in customary form, the form
and substance of such underwriting agreement being subject to the reasonable
satisfaction of the Company and a majority in interest of the Selling Holder;
(g) make available for inspection by the Selling Holder, any
underwriter participating in any sale or distribution pursuant to such
Registration Statement and any attorney, accountant or other agent retained by
any such Selling Holder or underwriter (collectively, the "Inspectors") all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers and employees to supply all information reasonably requested for such
purpose by any such Inspector in connection with such Registration Statement;
provided that the Company shall have no obligation to permit such access to the
Records or its officers or employees in a manner that would unreasonably disrupt
the normal conduct of its business operations. Each such Selling Holder and
Inspector that actually reviews Records supplied by the Company that include
information that the Company identifies, in good faith, as being confidential or
proprietary ("Confidential Information") shall be required at the Company's
option, prior to any such review, to execute an agreement with the Company
providing that such Inspector shall not publicly disclose any Confidential
Information unless such disclosure is required by applicable law or legal
process and shall not use such information for any purpose other than the
limited purpose contemplated by this subsection (g). The Selling Holder and
Inspector shall be required further to agree that it shall, upon learning that
disclosure of Confidential Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of the Confidential
Information;
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(h) in the event such sale is pursuant to an underwritten offering,
use its reasonable best efforts to obtain a comfort letter or letters from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters as the managing
underwriter reasonably requests; and (i) otherwise use its reasonable efforts to
comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings
statement complying with the provisions of Section 11(a) of the Securities Act
(including, at the option of the Company, pursuant to Rule 158 (or any successor
provision) under the Securities Act). Upon receipt of any notice from the
Company of the occurrence of any event of the kind described in subsection (e)
hereof, such Selling Holder shall forthwith discontinue all offerings, sales and
other dispositions of Restricted Stock pursuant to the Registration Statement
covering such Restricted Stock until such Selling Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by subsection (e) hereof.
In the event the Company shall give any such notice, the Company shall extend
the period during which such Registration Statement shall be maintained
effective pursuant to this Agreement (including the period referred to in
subsection (b) hereof) by the number of days during the period from and
including the date of the giving of such notice pursuant to subsection (b)
hereof to and including the first date on which the Selling Holder of Restricted
Stock covered by such Registration Statement shall have received the copies of
the supplemented or amended Prospectus contemplated by subsection (e) hereof.
Each Selling Holder shall notify the Company if any event relating to such
Selling Holder occurs which would require the preparation of a supplement or
amendment to the Prospectus so that such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(i) use its reasonable best efforts to take all other steps
reasonably necessary to effect the registration of such Restricted Stock
contemplated hereby.
4. Conditions and Limitations.
(a) The Company's obligations under this Section 4 shall be subject
to the Company having received the information and documents specified in
Section 5 hereof and the Selling Holder shall have observed or performed its
other covenants contained in Sections 5 and 7 hereof.
(b) The Company's obligation under this Section 4 hereof shall be
subject to the limitations and conditions specified in such section, and to the
condition that the Company may at any time terminate its proposal to register
equity securities for its own account and discontinue its efforts to cause a
Registration Statement to become or remain effective as to any and all shares of
Restricted Stock that would otherwise have been eligible for inclusion in such
registration.
5. Certain Covenants of the Holder. Notices and requests delivered to the
Company by Holder for whom Restricted Stock is to be registered pursuant to this
Agreement shall contain such information regarding the Restricted Stock to be so
registered, the Holder and the intended method of disposition of such Restricted
Stock as shall reasonably be required in connection with the actions
contemplated to be taken pursuant to this Agreement. Any Holder whose Restricted
Stock is included in a Registration Statement pursuant to this Agreement shall
execute all consents, powers of attorney, Registration Statements and other
documents reasonably required to be executed by it in order to cause such
Registration Statement to became effective. Each Selling Holder covenants that,
in disposing of such Holder's shares, such Holder will comply with Rules 10b-2,
10b-5, 10b-6 and 10b-7 (or any successor provisions) under the Exchange Act and
all other requirements of applicable law.
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6. Registration Expenses.
(a) All Registration Expenses (as defined in Section 6(b)) will be
borne by the Company. Underwriting discounts and commissions applicable to the
sale of Restricted Stock shall be borne by the Selling Holder of the Restricted
Stock to which such discount or commission relates, and the Selling Holder shall
be responsible for the fees and expenses of any legal counsel, accountants or
other agents retained by such Selling Holder and all other out-of-pocket
expenses incurred by such Selling Holder in connection with any registration
under this Agreement.
(b) As used herein, the term "Registration Expenses" means all
expenses incident to the Company's performance of or compliance with this
Agreement (whether or not the registration in connection with which such
expenses are incurred ultimately becomes effective), including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Restricted Stock),
rating agency fees, printing expenses, the fees and expenses incurred in
connection with the listing or admission for quotation of the securities to be
registered on any securities exchange or quotation system and fees and
disbursements of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or comfort letters
required by or incident to such performance), Securities Act liability insurance
(if the Company elects to obtain such insurance), the reasonable fees and
expenses of any special expert retained by the Company in connection with such
registration and the fees and expenses of other persons retained by the Company.
7. Indemnification; Contribution.
(a) Indemnification by the Company. In connection with any offering
of Restricted Stock pursuant to this Agreement, the Company shall indemnify and
hold harmless the Selling Holder, its officers, directors and agents and each
person, if any, who controls such Selling Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities (or actions or
proceedings in respect thereof), costs and expenses (including reasonable fees
and disbursements of counsel) arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus relating to Restricted Stock or in any amendment or
supplement thereto or in any preliminary Prospectus relating to Restricted Stock
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, except insofar as such losses, claims, damages, liabilities (or
actions or proceedings in respect thereof), costs or expenses arise out of, or
are based upon, (x) any such untrue statement or alleged untrue statement or any
omission or alleged omission made in reliance upon and in conformity with
information furnished in writing to the Company by such Selling Holder or on
such Selling Holder's behalf expressly for use therein. In connection with any
underwritten offering of Restricted Stock registered pursuant to this Agreement,
the Company shall cause to be included in any underwriting agreement with the
underwriters of such offering provisions indemnifying and providing for
contribution to such underwriters and their officers and directors and each
person who controls such underwriters on substantially the same basis as the
provisions of this Section 7(a) indemnifying and providing for contribution to
the Selling Holder.
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(b) Indemnification by the Selling Holder. In connection with any
offering of Restricted Stock pursuant to this Agreement, the Selling Holder
shall indemnify and hold harmless the Company, its officers, directors and
agents and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, and,
in accordance with industry practice, in the case of an offering of Restricted
Stock pursuant to this Agreement, each underwriter of such Restricted Stock if
requested by such underwriter, from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable fees and disbursements
of counsel) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus relating to Restricted Stock or in any amendment or supplement
thereto or in any preliminary Prospectus relating to Restricted Stock, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
provided that (i) such losses, claims, damages, liabilities or expenses arise
out of, or are based upon, any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information furnished in writing to
the Company by such Selling Holder or on such Selling Holder's behalf expressly
for use therein and (ii) no Selling Holder shall be liable for any
indemnification under this Section 7(b) in an aggregate amount which exceeds the
total net proceeds received by such Selling Holder from such offering. In
connection with any underwritten offering of Restricted Stock registered
pursuant to this Agreement, the Selling Holder shall cause to be included in any
underwriting agreement with the underwriters of such offering provisions
indemnifying and providing for contribution to such underwriters, their officers
and directors and each person who controls such underwriters on substantially
the same basis as the provisions of this Section 7(b) indemnifying and providing
for contribution to the Company.
(c) Conduct of Indemnification Proceedings. Promptly after receipt
by a person or entity entitled to indemnification under this paragraph (an
"Indemnified Party") of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against any
party required to provide indemnification (an "Indemnifying Party") under this
Section 7, notify the Indemnifying Party in writing of the commencement thereof
and promptly after receipt by any Indemnified Party of notice of any action or
proceeding (including any governmental investigation) brought or asserted
against any Indemnified Party hereunder in respect of which indemnity may be
sought from an Indemnifying Party hereunder, such Indemnifying Party shall
provide the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Party, and shall assume the payment of all
expenses. Such Indemnified Party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expenses of such Indemnified Party
unless (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii)
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the Indemnifying Party shall have failed to assume the defense of such action or
proceeding and employ counsel reasonably satisfactory to such Indemnified Party,
or (iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Party and such Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to such Indemnified Party which are
different from or additional to those available to the Indemnifying Party (in
which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense of
such action or proceeding on behalf of such Indemnified Party; it being
understood, however, that the Indemnifying Party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such Indemnified Party, which firm shall be designated
in writing by such Indemnified Party and reasonably satisfactory to the
Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding erected without its written consent,
but if settled with its written consent, or if there is a final judgment for the
plaintiff in any such action or proceeding, the Indemnifying Party shall
indemnify and hold harmless the Indemnified Party from and against any loss or
liability (to the extent stated above) by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this
Section 7 is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party in respect of any losses, claims, damages, liabilities or
judgments referred to herein, then each such 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 losses, claims,
damages, liabilities and judgments in such proportion as is appropriate to
reflect the relative fault of each such party in connection with such statements
or omissions or alleged statements or omissions, as well as any other relevant
equitable considerations. The relative fault of each such 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 party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Selling Holder agree
that it would not be just and equitable if contribution pursuant to this Section
7(d) 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 sentences. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding sentences shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claims. Notwithstanding the provisions of this
Section 7(d), no Selling Holder shall be required to contribute an amount in
excess of the amount by which the total price at which the Restricted Stock of
such Selling Holder was offered to the public exceeds the amount of any fee
which such Selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged 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.
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8. Reports Under the Exchange Act. With a view to making available to the
Selling Holder the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit Selling
Holder to sell securities of the Company to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times subsequent to ninety (90) days
after the effective date of the first registration statement covering an
underwritten public offering filed by the Company;
(b) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
at any time after it has become subject to such reporting requirements; and
(c) Furnish to the Selling Holder so long as such Selling Holder
owns any of the Registrable Securities forthwith upon request a written
statement by the Company that it has complied with the reporting requirements of
Rule 144 (at any time after ninety (90) days after the effective date of said
first registration statement filed by the Company), and of the Security Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as may be
reasonably requested in availing the Selling Holder of any rule or regulation of
the SEC permitting the selling of any such securities without registration.
9. Representations and Warranties. The Company represents and warrants
that:
(a) Existence and Rights. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Nevada. The Company has all requisite corporate power and authority, to carry on
its business and to own and use the properties owned and used by it. The Company
is qualified to conduct business and is in good standing under the laws of each
jurisdiction wherein the nature of its business or its ownership of property
requires it to be so qualified, except where the failure to be so qualified,
would not individually or in the aggregate, have a material adverse effect on
the assets or business of the Company.
(b) Corporate Authorization. The Company has all necessary power and
authority to enter into this Agreement and has taken all action, specifically
including, without limitation, all corporate action, necessary to execute,
deliver and perform this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and is a legally valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
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(c) No Conflict. The execution, delivery and performance of this
Agreement and of the related documents by the Company will not violate any
provision of the Company's Articles of Incorporation or Bylaws; or violate any
law or rule or regulation of any administrative agency or governmental body; or
any order, writ, injunction or decree of any court, arbiter, administrative
agency or governmental authority having jurisdiction over the Company; or
violate any indenture, mortgage, contract, will, agreement or other undertaking
to which the Company is a party or is subject, or result in the creation or
imposition of any lien or encumbrance on any of the properties of the Company
under any of the foregoing.
(d) Litigation. There is no litigation, proceeding, dispute, tax
audit or other governmental investigation pending, or to the best of the
Company's knowledge, threatened against, or affecting the Company's business or
its assets before any court or governmental agency or other body, which would
adversely affect the financial condition of The Company, its assets, or the
conduct of the Company's business, or which may impede the transaction
contemplated herein. There are no outstanding and unpaid judgments, tax
deficiencies, statements, or notices of assessments or other demands for payment
of taxes served on or filed against the Company. The Company is not in default
with respect to an order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority.
10. Miscellaneous.
(a) Notices. Any notice or other communication required or permitted
to be given under this Agreement shall be deemed given when received in writing
by the Parties at the address below or to such other address or the attention of
such other party as the Parties shall advise the other by written notice given
in conformity herewith:
If to the Company: Indigo-Energy, Inc.
13350 Random Hills Road
Suite 800
Fairfax, VA 22030
Tel: (703) 934-6189
Fax:(703) 591-3049
Attention: David Larson
With a Copy to: Gersten Savage, LLP
600 Lexington Avenue
New York, New York, 10022
Attention: Arthur S. Marcus, Esq.
If to the Advisor: HUB Energy, LLC
255 Airport Road
Indiana, PA 15701
Tel: (724) 349-6990
Attention: Mark A. Thompson
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or to such other address or the attention of such other party as the Parties
shall advise the other by notice in conformity herewith.
(b) Partial Invalidity. Each part of this Agreement is intended to
be separate. If any term, covenant, condition or provision hereof is illegal or
invalid or unenforceable for any reason whatsoever, such illegality, invalidity
or unenforceability shall not affect the legality, validity or enforceability of
the remaining parts of this Agreement and all such remaining parts hereto shall
not be impaired or invalidated in any way, but shall be legal, valid and
enforceable and have full force and effect as if the illegal, invalid,
unenforceable part has not been included.
(c) Law Governing Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without giving effect to its conflict of laws provisions. Venue shall be the
court of Common Pleas, Indiana, PA.
(d) Entire Agreement. This Agreement, including any other instrument
referred to herein or in the Advisory Services Agreement constitutes the entire
understanding and agreement of the parties hereto, and supersedes any and all
prior understandings or other agreements, either oral or in writing, if any,
among such parties with respect to the subject matter hereof and contains all of
the covenants and agreements between the parties with respect thereto. Each
party to this Agreement acknowledges that no representations, inducements, or
agreements, oral or otherwise, have been made by such party, or anyone acting on
behalf of such party, which are not embodied herein, and no other agreement,
statement or promise not contained in this agreement shall be valid or binding.
The parties hereto have had an opportunity to consult with their respective
attorneys concerning the meaning and the import of this Agreement and each has
read this agreement, as signified by their signatures below, and is executing
the same for the purposes and consideration herein expressed.
(e) Waivers. Waiver of any term or condition of this Agreement by
any Party shall be effective if in writing, signed by the Party against whom
such waiver is asserted. No delay on the part of any party in exercising any
right, power, or privilege hereunder shall operate as a waiver thereof. Nor
shall any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege. The rights and remedies of any party based upon, arising out
of or otherwise in respect of any inaccuracy in or breach by any other party of
any representation, warranty, covenant or Agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach is
based may also be the subject matter of any other representation, warranty,
covenant or Agreement contained in this Agreement (or in any other Agreement
between the parties) as to which there is no inaccuracy or breach.
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(f) Tax Consultation. Each Party acknowledges that it has had the
opportunity to and has consulted with their own separate independent accounting
and tax advisors in connection with the accounting and tax treatment for the
transactions contemplated hereby and the tax ramifications thereof. Each Party
shall bear all risk in connection with the accounting and tax treatment of the
transactions contemplated by this Agreement and no Party is relying on the other
Party in connection with the same.
(g) Variations in Pronouns. Wherever the context shall so require,
all words herein in the male gender shall be deemed to include the female or
neuter gender and vice versa, all singular words shall include the plural, and
all plural words shall include the singular. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
(h) Headings. The headings used in this Agreement are for
administrative purposes only and do not constitute substantive matter to be
considered in construing the terms and shall not affect the interpretation of
this Agreement. All references herein to Sections, subsections, and clauses,
shall be deemed references to such parts of this Agreement, unless the context
shall otherwise require. A reference to an article or section will mean an
article or section in this Agreement, unless otherwise explicitly set forth. The
titles and headings in this Agreement are for reference purposes only and will
not in any manner limit the construction of this Agreement. For the purposes of
such construction, this Agreement will be considered as a whole. The terms
"including" and "include" as used in this Agreement will be deemed to include
the phrase "without limitation."
(i) Attorney's Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements, but only from the offending party, in addition to any other
relief to which it may be entitled.
(j) Representation by Counsel. Each Party acknowledges that it has
had the opportunity to be represented by separate independent counsel in the
negotiation of this Agreement. Each Party warrants and represents that he has
consulted with his attorney of choice, or voluntarily chose not to do so,
concerning the execution, the meaning and the import of this Agreement, and has
read this Agreement and fully understands the terms hereof as signified by his
signature below, and is executing the same of his own free will for the purposes
and consideration herein expressed. Each Party warrants and represents that he
has had sufficient time to consider whether to enter into this Agreement and
that he is relying solely on his own judgment and the advice of his own counsel,
if any, in deciding to execute this Agreement.
(k) Capacity. Each party represents and warrants that he has the
authority to enter into this Agreement either on his own behalf or in an
official capacity on behalf of a corporate party.
(l) Further Assurances. At any time and from time to time after the
date hereof, at the request of any Party, and without further consideration, the
other party will execute and deliver such other and further instruments and
documents, and take such other action as the other Party may reasonably deem
necessary, convenient or desirable in order to more effectively assist any Party
in exercising all rights with respect to the obligations created by this
Agreement.
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(m) Amendments. This Agreement may not be modified, amended,
superceded, cancelled, renewed or extended, except in writing, signed by the
party or parties to be bound thereby.
(n) Binding Effect and Assignment. This Agreement and the terms,
covenants, conditions, provisions, obligations, undertakings, rights and
benefits hereof, shall be binding upon, and shall inure to the benefit of, the
undersigned parties and their respective heirs, executors, administrators,
representatives, officers, directors, successors, agents, servants, employees,
attorneys, and assigns.
(o) Counterparts. This Agreement may be executed in several
counterparts by one or more of the undersigned and all such counterparts so
executed shall together be deemed and constitute one final agreement, as if one
document had been signed by all parties hereto; and each such counterpart shall
be deemed an original, binding the parties subscribed hereto and multiple
signature pages affixed to a single copy of this Agreement shall be deemed to be
a fully executed original Agreement.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
INDIGO-ENERGY, INC.
By: /s/ David Larson
---------------------------
Name: David Larson
Title: President
HUB ENERGY, LLC
By: /s/ Mark A. Thompson
---------------------------
Name: Mark A. Thompson
Title: President
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