Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT"), is made and entered
into as of July 28, 2014, by and among BARON ENERGY, INC., a Nevada corporation
(the "COMPANY"), and the persons or entities identified on Schedule A hereto
(collectively, the "INVESTORS" and each individually, an "INVESTOR").
WHEREAS, the Company and the Investors are parties to a Warrant Agreement,
dated as of July 28, 2014, pursuant to which the Investors have acquired a
Warrant (as defined below) representing the right to purchase from the Company
Warrant Shares (as defined below) upon the terms and conditions set forth in the
Warrant (as amended, restated, supplemented, or otherwise modified from time to
time, the "WARRANT AGREEMENT"); and
WHEREAS, in connection with the consummation of the transactions
contemplated by the Warrant Agreement, the parties desire to enter into this
Agreement in order to grant certain registration rights to the Investors as set
forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual and
dependent covenants hereinafter set forth, the parties agree as follows:
1. Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" of a Person means any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such Person. The term "control" (including the terms
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"AGREEMENT" has the meaning set forth in the preamble.
"BOARD" means the board of directors of the Company (and any successor
governing body of the Company or any successor of the Company).
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency administering the Securities Act and the Exchange Act at the
time.
"COMMON STOCK" means the common stock, par value $0.001 per share, of the
Company and any other common equity securities issued by the Company, and any
other shares of stock issued or issuable with respect thereto (whether by way of
a stock dividend or stock split or in exchange for or upon conversion of such
shares or otherwise in connection with a combination of shares, distribution,
recapitalization, merger, consolidation or other corporate reorganization).
"COMPANY" has the meaning set forth in the preamble and includes the
Company's successors by merger, acquisition, reorganization or otherwise.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations thereunder, which
shall be in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any federal, state, local or foreign
government or political subdivision thereof, or any agency or instrumentality of
such government or political subdivision, or any self-regulated organization or
other non-governmental regulatory authority or quasi-governmental authority (to
the extent that the rules, regulations or orders of such organization or
authority have the force of law), or any arbitrator, court or tribunal of
competent jurisdiction.
"INVESTORS" has the meaning set forth in the preamble.
"PERSON" means an individual, corporation, partnership, joint venture,
limited liability company, Governmental Authority, unincorporated organization,
trust, association, or other entity.
"PIGGYBACK REGISTRATION" has the meaning set forth in SECTION 3(A).
"PROSPECTUS" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"REGISTRABLE SECURITIES" means (a) any shares of Common Stock at any time
held by the Investors or issuable upon the exercise of the Warrant and/or
conversion, exercise or exchange of any Series A Convertible Preferred Stock
owned by the Investors at any time, and (b) any shares of Common Stock issued or
issuable with respect to any shares described in subsection (a) above by way of
a stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization (it being
understood that for purposes of this Agreement, a Person shall be deemed to be a
holder of Registrable Securities whenever such Person has the right to then
acquire or obtain from the Company any Registrable Securities, whether or not
such acquisition has actually been effected). As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i) a
Registration Statement covering such securities has been declared effective by
the Commission and such securities have been disposed of pursuant to such
effective Registration Statement, (ii) such securities are sold under
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circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met, (iii) such
securities are otherwise transferred and such securities may be resold without
subsequent registration under the Securities Act, or (iv) such securities shall
have ceased to be outstanding.
"REGISTRATION STATEMENT" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all materials incorporated by reference in such Registration Statement.
"RULE 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto (such as Rule 144A).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder, which shall
be in effect from time to time.
"SELLING EXPENSES" means all underwriting discounts, selling commissions
and stock transfer taxes applicable to the sale of Registrable Securities, and
fees and disbursements of counsel for any holder of Registrable Securities,
except for the fees and disbursements of counsel for the holders of Registrable
Securities required to be paid by the Company pursuant to SECTION 6.
"SERIES A CONVERTIBLE PREFERRED STOCK" means the Series A Convertible
Preferred Stock of the Company, par value $0.001 per share.
"WARRANT" has the meaning specified in the Warrant Agreement.
"WARRANT AGREEMENT" has the meaning set forth in the recitals.
"WARRANT SHARES" has the meaning specified in the Warrant.
2. [Reserved].
3. Piggyback Registration.
(a) Whenever the Company proposes to register any shares of its Common
Stock under the Securities Act (other than a registration effected solely to
implement an employee benefit plan or a transaction to which Rule 145 of the
Securities Act is applicable, or a Registration Statement on Form S-4, S-8 or
any successor form thereto or another form not available for registering the
Registrable Securities for sale to the public), whether for its own account or
for the account of one or more stockholders of the Company and the form of
Registration Statement to be used may be used for any registration of
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company shall give
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prompt written notice to the holders of Registrable Securities of its intention
to effect such a registration and, subject to SECTION 3(B) and SECTION 3(C),
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion from the holders
of Registrable Securities within twenty (20) days after the Company's notice has
been given to each such holder. The Company may postpone or withdraw the filing
or the effectiveness of a Piggyback Registration at any time in its sole
discretion.
(b) If a Piggyback Registration is initiated as a primary underwritten
offering on behalf of the Company and the managing underwriter advises the
Company and the holders of Registrable Securities (if any holders of Registrable
Securities have elected to include Registrable Securities in such Piggyback
Registration) in writing that in its opinion the number of shares of Common
Stock proposed to be included in such registration, including all Registrable
Securities and all other shares of Common Stock proposed to be included in such
underwritten offering, exceeds the number of shares of Common Stock which can be
sold in such offering and/or that the number of shares of Common Stock proposed
to be included in any such registration would adversely affect the price per
share of the Common Stock to be sold in such offering, the Company shall include
in such registration (i) first, the number of shares of Common Stock that the
Company proposes to sell; (ii) second, the number of shares of Common Stock
requested to be included therein by holders of Registrable Securities, allocated
pro rata among all such holders on the basis of the number of Registrable
Securities owned by each such holder or in such manner as they may otherwise
agree; and (iii) third, the number of shares of Common Stock requested to be
included therein by holders of Common Stock (other than holders of Registrable
Securities), allocated among such holders in such manner as they may agree.
(c) If a Piggyback Registration is initiated as an underwritten offering on
behalf of a holder of Common Stock other than Registrable Securities, and the
managing underwriter advises the Company in writing that in its opinion the
number of shares of Common Stock proposed to be included in such registration,
including all Registrable Securities and all other shares of Common Stock
proposed to be included in such underwritten offering, exceeds the number of
shares of Common Stock which can be sold in such offering and/or that the number
of shares of Common Stock proposed to be included in any such registration would
adversely affect the price per share of the Common Stock to be sold in such
offering, the Company shall include in such registration (i) first, the number
of shares of Common Stock requested to be included therein by the holder(s)
requesting such registration and by the holders of Registrable Securities,
allocated pro rata among such holders on the basis of the number of shares of
Common Stock (on a fully diluted, as converted basis) and the number of
Registrable Securities, as applicable, owned by all such holders or in such
manner as they may otherwise agree; and (ii) second, the number of shares of
Common Stock requested to be included therein by other holders of Common Stock,
allocated among such holders in such manner as they may agree.
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(d) If any Piggyback Registration is initiated as a primary underwritten
offering on behalf of the Company, the Company shall select the investment
banking firm or firms to act as the managing underwriter or underwriters in
connection with such offering.
4. [Reserved].
5. Registration Procedures. If and whenever the holders of Registrable
Securities request that any Registrable Securities be registered pursuant to the
provisions of this Agreement, the Company shall use its best efforts to effect
the registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto the Company
shall as soon as practicable:
(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to become effective;
(b) prepare and file with the Commission such amendments, 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 for a period of not less than one hundred twenty (120) days,
or if earlier, until all of such Registrable Securities have been disposed of
and to comply with the provisions of the Securities Act with respect to the
disposition of such Registrable Securities in accordance with the intended
methods of disposition set forth in such Registration Statement;
(c) within a reasonable time before filing such Registration Statement,
Prospectus or amendments or supplements thereto, furnish to one counsel selected
by holders of a majority of such Registrable Securities copies of such documents
proposed to be filed, which documents shall be subject to the review, comment
and approval of such counsel;
(d) notify each selling holder of Registrable Securities, promptly after
the Company receives notice thereof, of the time when such Registration
Statement has been declared effective or a supplement to any Prospectus forming
a part of such Registration Statement has been filed;
(e) furnish to each selling holder of Registrable Securities such number of
copies of the Prospectus included in such Registration Statement (including each
preliminary Prospectus) and any supplement thereto (in each case including all
exhibits and documents incorporated by reference therein) and such other
documents as such seller may request in order to facilitate the disposition of
the Registrable Securities owned by such seller;
(f) use its best efforts to register or qualify such Registrable Securities
under such other securities or "blue sky" laws of such jurisdictions as any
selling holder requests and do any and all other acts and things which may be
necessary or advisable to enable such holders to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such holders;
provided, that the Company shall not be required to qualify generally to do
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business, subject itself to general taxation or consent to general service of
process in any jurisdiction where it would not otherwise be required to do so
but for this SECTION 5(F);
(g) notify each selling holder of such Registrable Securities, at any time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
Prospectus included in such Registration Statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such holder, the Company shall
prepare a supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such Prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(h) make available for inspection by any selling holder of Registrable
Securities, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained by
any such holder or underwriter (collectively, the "INSPECTORS"), all financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS"), and cause the Company's officers, directors and
employees to supply all information requested by any such Inspector in
connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity)
for all such Registrable Securities not later than the effective date of such
registration;
(j) use its best efforts to cause such Registrable Securities to be listed
on each securities exchange on which the Common Stock is then listed or, if the
Common Stock is not then listed, on a national securities exchange selected by
the holders of a majority of such Registrable Securities;
(k) in connection with an underwritten offering, enter into such customary
agreements (including underwriting and lock-up agreements in customary form) and
take all such other customary actions as the holders of such Registrable
Securities or the managing underwriter of such offering reasonably request in
order to expedite or facilitate the disposition of such Registrable Securities
(including, without limitation, making appropriate officers of the Company
available to participate in "road show" and other customary marketing activities
(including one-on-one meetings with prospective purchasers of the Registrable
Securities);
(l) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission and make available to its stockholders an earnings
statement (in a form that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder) no later than thirty (30) days after the
end of the 12-month period beginning with the first day of the Company's first
full fiscal quarter after the effective date of such Registration Statement,
which earnings statement shall cover said 12-month period, and which requirement
will be deemed to be satisfied if the Company timely files complete and accurate
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information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise
complies with Rule 158 under the Securities Act; and
(m) furnish to each selling holder of Registrable Securities and each
underwriter, if any, with (i) a legal opinion of the Company's outside counsel,
dated the effective date of such Registration Statement (and, if such
registration includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), in form and substance as is
customarily given in opinions of the Company's counsel to underwriters in
underwritten public offerings; and (ii) a "comfort" letter signed by the
Company's independent certified public accountants in form and substance as is
customarily given in accountants' letters to underwriters in underwritten public
offerings;
(n) without limiting SECTION 5(F) above, use its best efforts to cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the holders of such Registrable
Securities to consummate the disposition of such Registrable Securities in
accordance with their intended method of distribution thereof;
(o) notify the holders of Registrable Securities promptly of any request by
the Commission for the amending or supplementing of such Registration Statement
or Prospectus or for additional information;
(p) advise the holders of Registrable Securities, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of such Registration Statement or
the initiation or threatening of any proceeding for such purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued;
(q) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such Registration
Statement and to require the insertion therein of language, furnished to the
Company in writing, which in the reasonable judgment of such holder and its
counsel should be included; and
(r) otherwise use its best efforts to take all other steps necessary to
effect the registration of such Registrable Securities contemplated hereby.
6. Expenses. All expenses (other than Selling Expenses) incurred by the Company
in complying with its obligations pursuant to this Agreement and in connection
with the registration and disposition of Registrable Securities, including,
without limitation, all registration and filing fees, underwriting expenses
(other than fees, commissions or discounts), expenses of any audits incident to
or required by any such registration, fees and expenses of complying with
securities and "blue sky" laws, printing expenses, fees and expenses of the
Company's counsel and accountants and fees and expenses of one counsel for the
holders of Registrable Securities participating in such registration as a group
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(selected by the holders of a majority of the Registrable Securities included in
the registration), shall be paid by the Company. All Selling Expenses relating
to Registrable Securities registered pursuant to this Agreement shall be borne
and paid by the holders of such Registrable Securities, in proportion to the
number of Registrable Securities registered for each such holder.
7. Indemnification.
(a) The Company shall indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities, such holder's officers,
directors, managers, members, partners, stockholders and Affiliates, each
underwriter, broker or any other Person acting on behalf of such holder of
Registrable Securities and each other Person, if any, who controls any of the
foregoing Persons within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against all losses, claims, actions, damages,
liabilities and expenses, joint or several, to which any of the foregoing
Persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, actions, damages, liabilities or expenses arise out of or
are based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus, preliminary Prospectus,
free writing prospectus (as defined in Rule 405 promulgated under the Securities
Act) or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation or alleged violation by
the Company of the Securities Act or any other similar federal or state
securities laws 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, qualification or compliance; and shall
reimburse such Persons for any legal or other expenses reasonably incurred by
any of them in connection with investigating or defending any such loss, claim,
action, damage or liability, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of the
Registration Statement, Prospectus, free-writing prospectus (as defined in Rule
405 promulgated under the Securities Act) or any amendments or supplements
thereto (if the same was required by applicable law to be so delivered) after
the Company has furnished such holder with a sufficient number of copies of the
same prior to any written confirmation of the sale of Registrable Securities.
(b) In connection with any registration in which a holder of Registrable
Securities is participating, each such holder shall furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any such Registration Statement or Prospectus and, to the
extent permitted by law, shall indemnify and hold harmless, the Company, each
director of the Company, each officer of the Company who shall sign such
Registration Statement, each underwriter, broker or other Person acting on
behalf of the holders of Registrable Securities and each Person who controls any
of the foregoing Persons within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any losses, claims, actions, damages,
liabilities or expenses resulting from any untrue or alleged untrue statement of
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material fact contained in the Registration Statement, Prospectus, preliminary
Prospectus, free writing prospectus (as defined in Rule 405 promulgated under
the Securities Act) or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; provided, that the obligation
to indemnify shall be several, not joint and several, for each holder and shall
be limited to the net proceeds (after underwriting fees, commissions or
discounts) actually received by such holder from the sale of Registrable
Securities pursuant to such Registration Statement.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in this Section 7, such
indemnified party shall, if a claim in respect thereof is made against an
indemnifying party, give written notice to the latter of the commencement of
such action. The failure of any indemnified party to notify an indemnifying
party of any such action shall not (unless such failure shall have a material
adverse effect on the indemnifying party) relieve the indemnifying party from
any liability in respect of such action that it may have to such indemnified
party hereunder. In case any such action is brought against an indemnified
party, the indemnifying party shall be entitled to participate in and to assume
the defense of the claims in any such action that are subject or potentially
subject to indemnification hereunder, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after written notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be responsible for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof; provided, that if (i) any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
provided hereunder, or (ii) such action seeks an injunction or equitable relief
against any indemnified party or involves actual or alleged criminal activity,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party without such indemnified party's
prior written consent (but, without such consent, shall have the right to
participate therein with counsel of its choice) and such indemnifying party
shall reimburse such indemnified party and any Person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity provided hereunder. If the indemnifying party is not
entitled to, or elects not to, assume the defense of a claim, it shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim. In such instance, the conflicting indemnified parties
shall have a right to retain one separate counsel, chosen by the holders of a
majority of the Registrable Securities included in the registration, at the
expense of the indemnifying party.
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(d) If the indemnification provided for hereunder is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts 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 indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim, damage, liability or action as
well as any other relevant equitable considerations; provided, that the maximum
amount of liability in respect of such contribution shall be limited, in the
case of each holder of Registrable Securities, to an amount equal to the net
proceeds (after underwriting fees, commissions or discounts) actually received
by such seller from the sale of Registrable Securities effected pursuant to such
registration. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties agree that it would not be just
and equitable if contribution pursuant hereto were determined by pro rata
allocation or by any other method or allocation which does not take account of
the equitable considerations referred to herein. No Person guilty or liable of
fraudulent misrepresentation shall be entitled to contribution from any Person.
8. Participation in Underwritten Registrations. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided, that no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder,
such holder's ownership of its shares of Common Stock to be sold in the offering
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in SECTION 7.
9. Rule 144 Compliance. With a view to making available to the holders of
Registrable Securities the benefits of Rule 144 under the Securities Act and any
other rule or regulation of the Commission that may at any time permit a holder
to sell securities of the Company to the public without registration or pursuant
to a registration on Form S-3 (or any successor form), the Company shall:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the Registration Date;
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(b) use best efforts to file with the Commission 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 the Company has become subject to such
reporting requirements; and
(c) furnish to any holder so long as the holder owns Registrable
Securities, promptly upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 under the Securities Act
and of the Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed or furnished by the Company as such holder may request in connection with
the sale of Registrable Securities without registration.
10. Preservation of Rights. The Company shall not (a) grant any registration
rights to third parties which are more favorable than or inconsistent with the
rights granted hereunder, or (b) enter into any agreement, take any action, or
permit any change to occur, with respect to its securities that violates or
subordinates the rights expressly granted to the holders of Registrable
Securities in this Agreement.
11. Termination. This Agreement shall terminate and be of no further force or
effect when there shall no longer be any Registrable Securities outstanding;
provided, that the provisions of SECTION 6 and SECTION 7 shall survive any such
termination.
12. Notices. All notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
given (a) when delivered by hand (with written confirmation of receipt); (b)
when received by the addressee if sent by a nationally recognized overnight
courier (receipt requested); (c) on the date sent by facsimile or e-mail of a
PDF document (with confirmation of transmission) if sent during normal business
hours of the recipient, and on the next business day if sent after normal
business hours of the recipient or (d) on the third day after the date mailed,
by certified or registered mail, return receipt requested, postage prepaid. Such
communications must be sent to the respective parties at the addresses indicated
below (or at such other address for a party as shall be specified in a notice
given in accordance with this SECTION 12).
If to the Company: Baron Energy, Inc.
300 S. CM Allen Pkwy, Suite 400
San Marcos, Texas 78666
Facsimile: (512) 392-7238
E-mail:
Attention: Lisa P. Hamilton, Chief Financial Officer
If to any Investor, to such Investor's address as set forth on Schedule A
hereto.
13. Entire Agreement. This Agreement, together with the Purchase Agreement and
any related exhibits and schedules thereto, constitutes the sole and entire
agreement of the parties to this Agreement with respect to the subject matter
contained herein, and supersedes all prior and contemporaneous understandings
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and agreements, both written and oral, with respect to such subject matter.
Notwithstanding the foregoing, in the event of any conflict between the terms
and provisions of this Agreement and those of the Purchase Agreement, the terms
and conditions of this Agreement shall control.
14. Successor and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Each Investor may assign its rights hereunder to any
purchaser or transferee of Registrable Securities; provided, that such purchaser
or transferee shall, as a condition to the effectiveness of such assignment, be
required to execute a counterpart to this Agreement agreeing to be treated as an
Investor whereupon such purchaser or transferee shall have the benefits of, and
shall be subject to the restrictions contained in, this Agreement as if such
purchaser or transferee was originally included in the definition of an Investor
herein and had originally been a party hereto.
15. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever, under
or by reason of this Agreement.
16. Headings. The headings in this Agreement are for reference only and shall
not affect the interpretation of this Agreement.
17. Amendment, Modification and Waiver. The provisions of this Agreement may
only be amended, modified, supplemented, or waived with the prior written
consent of the Company and the holders of a majority of the Registrable
Securities. No waiver by any party or parties shall operate or be construed as a
waiver in respect of any failure, breach or default not expressly identified by
such written waiver, whether of a similar or different character, and whether
occurring before or after that waiver. Except as otherwise set forth in this
Agreement, no failure to exercise, or delay in exercising, any right, remedy,
power or privilege arising from this Agreement shall operate or be construed as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.
18. Severability. If any term or provision of this Agreement is invalid,
illegal, or unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of this Agreement
or invalidate or render unenforceable such term or provision in any other
jurisdiction. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the greatest extent possible.
19. Remedies. Each holder of Registrable Securities, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
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shall be entitled to specific performance of its rights under this Agreement.
The Company acknowledges that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and the Company hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
20. Governing Law; Submission to Jurisdiction. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Texas
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Texas or any other jurisdiction). Any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal courts of the
United States or the courts of the State of Texas in each case located in the
city of Dallas, Texas and County of Dallas, and each party irrevocably submits
to the exclusive jurisdiction of such courts in any such suit, action or
proceeding. Service of process, summons, notice, or other document by mail to
such party's address set forth herein shall be effective service of process for
any suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or any proceeding in such courts and irrevocably waive and
agree not to plead or claim in any such court that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
21. Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues and, therefore, each such party irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of
any legal action arising out of or relating to this Agreement or the
transactions contemplated hereby. Each party to this Agreement certifies and
acknowledges that (a) no representative of any other party has represented,
expressly or otherwise, that such other party would not seek to enforce the
foregoing waiver in the event of a legal action, (b) such party has considered
the implications of this waiver, (c) such party makes this waiver voluntarily,
and (d) such party has been induced to enter into this Agreement by, among other
things, the mutual waivers and certifications in this SECTION 21.
22. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall be deemed to be one
and the same agreement. A signed copy of this Agreement delivered by facsimile,
e-mail or other means of electronic transmission shall be deemed to have the
same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first written above.
[SIGNATURE PAGES FOLLOW]
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BARON ENERGY, INC.
By:
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Name:
--------------------------------------------
Title:
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PETRO CAPITAL ENERGY CREDIT, LLC,
AS ADMINISTRATIVE AGENT
By: PCEC Management, LLC, its Managing Member
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
PETRO CAPITAL ENERGY CREDIT, LLC
By: PCEC Management, LLC, its Managing Member
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
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EXHIBIT A
TO
REGISTRATION RIGHTS AGREEMENT
INVESTORS
Petro Capital Energy Credit, LLC
3710 Rawlins Street, Suite 1000
Dallas, Texas 75219
Facsimile: (214) 661-7760
E-mail:
Attention: Rosser Newton
Petro Capital Energy Credit, LLC,
as Administrative Agent
3710 Rawlins Street, Suite 1000
Dallas, Texas 75219
Facsimile: (214) 661-7760
E-mail:
Attention: Rosser Newton
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