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EXHIBIT 10.9
[EXECUTION VERSION]
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of March 31, 1999, by and among Sierra Well Service, Inc., a
Delaware corporation (the "Company") and Joint Energy Development Investments II
Limited Partnership, a Delaware limited partnership (JEDI II").
This Agreement is made pursuant to the Securities Purchase Agreement
(the "Securities Purchase Agreement") dated as of March 31, 1999, by and among
the Company and JEDI II. In order to induce JEDI II to enter into the Securities
Purchase Agreement, the Company has agreed to provide the registration and other
rights set forth in this Agreement. Pursuant to the Securities Purchase
Agreement, JEDI II will purchase shares of the Company's (i) Series A Cumulative
Preferred Stock, (ii) Series B Convertible Preferred Stock and (iii) Series C
Convertible Preferred Stock. The execution and delivery of this Agreement is a
condition to the Closing (as defined in the Securities Purchase Agreement).
The parties agree as follows:
ARTICLE 0.01
Section (i). Definitions. Capitalized terms used herein without
definition shall have the meanings given to them in the Securities Purchase
Agreement. The terms set forth below are used herein as so defined:
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling, controlled by, or under common
control with the first Person or (ii) that directly or indirectly owns more than
five percent (5%) of any class of the voting securities or capital stock of or
equity interests in such Person. The term "control" (including the terms
"controlling," "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power either to (i) vote five percent
(5%) or more of the securities or interests having ordinary voting power for the
election of directors (or other comparable controlling body) of such Person or
to (ii) direct or cause the direction of the management or the policies of such
Person, whether through the ownership of voting securities or interests, by
contract or otherwise.
"Commission" has the meaning specified therefor in Section
1.02 of this Agreement.
"Common Stock" means the common stock, no par value per share,
of the Company.
"Conversion Shares" means the shares of Common Stock issuable
on conversion of the Preferred Stock.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Holder" means the record holder of any Registrable
Securities.
"Inspector" has the meaning specified therefor in Section 2.03
this Agreement.
"Losses" has the meaning specified therefor in Section 2.06(a)
of this Agreement.
"Other Holders" has the meaning specified therefor in Section
2.01 of this Agreement.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, business
trust, trust or unincorporated entity.
"Preferred Stock" means, either singly or collectively, the
Company's Series A Cumulative Preferred Stock, Series B Convertible Preferred
Stock and Series C Convertible Preferred Stock, issued or received in connection
with the Securities Purchase Agreement, dated March 31, 1999, by and between the
Company and JEDI II.
"Records" has the meaning specified therefor in Section 2.03
of this Agreement.
"Registrable Securities" means the Conversion Shares and
shares of the Company's Common Stock issued pursuant to the terms and conditions
of the Preferred Stock, until such time as such securities cease to be
Registrable Securities pursuant to Section 1.02 hereof.
"Requesting Holder(s)" has the meaning specified therefor in
Section 2.01 of this Agreement.
"Request Notice" has the meaning specified therefor in Section
2.01 of this Agreement.
"Registration Statement" has the meaning specified therefor in
Section 2.01 of this Agreement.
"Reporting Commencement Date" has the meaning specified
therefor in Section 2.01 of this Agreement.
"Securities Act" has the meaning specified therefor in Section
1.02 of this Agreement.
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"Selling Holder" means a Holder who is selling Registrable
Securities pursuant to a Registration Statement.
Section 0.02. Registrable Securities. Any Registrable Security will
cease to be a Registrable Security when (i) a Registration Statement covering
such Registrable Security has been declared effective by the Securities and
Exchange Commission (the "Commission") and such Registrable Security has been
sold or disposed of pursuant to such effective Registration Statement; (ii) such
Registrable Security is disposed of pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act of 1933, as amended (the
"Securities Act"); (iii) such Registrable Security is eligible to be, and at the
time of determination can be, disposed of pursuant to paragraph (k) of Rule 144
(or any similar provision then in force) under the Securities Act; or (iv) such
Registrable Security is held by the Company or one of its subsidiaries.
ARTICLE I
Section 1.01. Demand Registration. (a) Any time after the first date on
which (i) the Common Stock is registered under Section 12 of the Exchange Act or
(ii) the Company is required to file reports with the Commission pursuant to
Section 15(d) of the Exchange Act as a result of the effectiveness of a
registration statement filed by the Company under the Securities Act with
respect to Common Stock (the "Reporting Commencement Date"), any Holder or
Holders who collectively beneficially own at least a majority of the Registrable
Securities may request (a "Request Notice") the Company to register under the
Securities Act all or any portion of the Registrable Securities that are held by
such Holder or Holders (collectively, the "Requesting Holder") for sale in the
manner specified in the Request Notice.
(b) Promptly following receipt of a Request Notice, the
Company shall immediately notify each Holder (except the Requesting Holder) of
the receipt of a Request Notice and shall use its best efforts to file a
registration statement under the Securities Act (each such registration
statement is hereinafter referred to as a "Registration Statement") effecting
the registration under the Securities Act, for public sale in accordance with
the method of disposition specified in such Request Notice, of the Registrable
Securities specified in the Request Notice (and in any notices that the Company
receives from other Holders no later than the 15th day after receipt of the
notice sent by the Company) (such other Holders and the Requesting Holder are
hereinafter referred to as the "Requesting Holders"). If such method of
disposition shall be an underwritten public offering, the Requesting Holders
holding a majority of the Registrable Securities to be registered may designate
the managing underwriter of such offering, subject to the approval of the
Company, which approval shall not be withheld unreasonably. The Company shall be
obligated to register Registrable Securities pursuant to this Section 2.01 on
three occasions only. A request pursuant to this Section 2.01 shall be counted
only when the corresponding Registration Statement has been filed and becomes
effective under the Securities Act.
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(c) The Company and any Person other than a Holder (the "Other
Holders") who is entitled to piggy-back registration rights may include
securities of the Company in a Registration Statement filed pursuant to Section
2.01, but only to the extent that (i) all of the Registrable Securities
requested by Holders to be included in such Registration Statement have been
included and (ii) in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would not
materially jeopardize the successful marketing of the Registrable Securities to
be sold. If the managing underwriter determines that it is necessary to reduce
the number of securities to be registered on behalf of the Company or such Other
Holders, securities held by such Other Holders shall be excluded first and then
the securities to be registered by the Company shall be excluded. Except as
provided in this subsection (c), the Company will not effect any other
registration of its securities (except with respect to Registration Statements
on Form S-4 or S-8 or any forms succeeding thereto for purposes permissible
under such forms as of the date hereof or filed in connection with an exchange
offer), whether for its own account or that of any Other Holder, from the date
of receipt of a Request Notice related to an underwritten public offering until
the completion of the distribution by the underwriters of all securities
thereunder.
From and after the date of this Agreement and until no Registrable
Securities remain outstanding, the Company shall not grant registration rights
to any Person unless such rights are consistent with the provisions of this
Agreement.
Section 1.02. Piggy-Back Registration. If the Company proposes
to register any of its securities under the Securities Act for sale to the
public for cash, whether for its own account or for the account of Other Holders
or both (except with respect to Registration Statements on Forms S-4 or S-8 or
any forms succeeding thereto for purposes permissible under such forms as of the
date hereof), each such time it will give written notice to all Holders of its
intention to do so no less than 20 days prior to the anticipated filing date.
Upon the written request received by the Company from any Holder no later than
the 15th day after receipt by such Holder of the notice sent by the Company
(which request shall state the intended method of disposition thereof), the
Company will use commercially reasonable efforts to cause the Registrable
Securities as to which registration shall have been so requested to be included
in the securities to be covered by such Registration Statement, all to the
extent requisite to permit the sale or other disposition by each Holder (in
accordance with its written request) of such Registrable Securities so
registered; provided, however, that the Company may at any time prior to the
effectiveness of any such Registration Statement, in its sole discretion and
without the consent of any Holder, abandon any proposed offering by the Company
in which any Holder had requested to participate. The number of Registrable
Securities to be included in such a registration may be reduced or eliminated if
and to the extent, in the case of an underwritten offering, the managing
underwriter shall advise the Company that such inclusion would materially
jeopardize the successful marketing of the securities (including the Registrable
Securities) proposed to be sold therein; provided, however, that (a) in the case
of a Registration Statement filed pursuant to the
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exercise of demand registration rights of any Other Holders, priority shall be
given first to the Other Holders demanding such registration, then to the
Holders, then to the Company and then to Other Holders (other than the Other
Holders demanding such registration) and (b) in the case of a Registration
Statement the filing of which is initiated by the Company, priority shall be
given (A) first to the Company, then (B) to the Holders, then (C) to Other
Holders. Notwithstanding any language to the contrary in this Section 2.02,
however, Registrable Securities may be excluded from a registration statement
only to the extent that securities held by Affiliates of the Company (other than
the Holders) have first been excluded from such registration statement.
Section 1.03. Registration Procedures. If and whenever the
Company is required pursuant to this Agreement to effect the registration of any
of the Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement, on a form available to the Company, with respect to such securities
(which filing shall be made (i) as expeditiously as reasonably possible (but in
no event later than 30 days after the receipt by the Company of a Request
Notice) in the case of a shelf registration if the Company is then eligible to
file a Registration Statement on Form S-3 or (ii) as expeditiously as reasonably
possible (but in no event later than 45 days after the receipt by the Company of
a Request Notice) in the case of any underwritten offering or if the Company is
not eligible to file a Registration Statement on Form S-3; the Company shall
thereafter use commercially reasonable efforts to cause such Registration
Statement to become and remain effective for the period of the distribution
contemplated thereby (determined pursuant to subparagraph (g) below);
(b) prepare and file with the Commission 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
the distribution period (determined pursuant to subparagraph (g) below) and as
may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement;
(c) furnish to each Selling Holder and to each underwriter
such number of copies of the Registration Statement and the prospectus included
therein (including each preliminary prospectus and each document incorporated by
reference therein to the extent then required by the rules and regulations of
the Commission) as such Persons may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Securities covered by
such Registration Statement;
(d) if applicable, use commercially reasonable efforts to
register or qualify the Registrable Securities covered by such Registration
Statement under the securities or blue sky laws of such jurisdictions as the
Selling Holders or, in the case of an underwritten public offering,
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the managing underwriter, shall reasonably request, provided that the Company
will not be required to qualify generally to transact business in any
jurisdiction where it is not then required to so qualify or to take any action
that would subject it to general service of process in any such jurisdiction
where it is not then so subject;
(e) immediately notify each Selling Holder and each
underwriter, 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 contained in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and amend
or supplement the prospectus or take other appropriate action as promptly as
practicable (but, in any event, no longer than fifteen days) so that the
prospectus does not include 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 in the light of the circumstances then
existing;
(f) in the case of an underwritten public offering enter into
such customary agreements, (including an underwriting agreement), and furnish,
at the request of the underwriters, such opinions of counsel, and "cold comfort"
letters from the independent accountants for the Company as are, in each case,
customary in form and substance;
(g) For purposes of subsections (a) and (b) above, the period
of distribution of Registrable Securities in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it (but not more than six
months) and the period of distribution of Registrable Securities in any other
registration shall be deemed to extend until the sale of all Registrable
Securities covered thereby;
(h) make available for inspection by one representative of the
Selling Holders designated by a majority thereof, any underwriter participating
in any distribution pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by such representative of the Selling Holders
or underwriter (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 reasonably requested by any such Inspector in connection with such
Registration Statement; provided that the Company may require the Inspectors to
conduct their investigation in a manner that does not unreasonably disrupt the
Company's operations and to execute such reasonable confidentiality agreements
as the Company may reasonably determine to be advisable.
(i) cause the Registrable Securities to be listed on any
national securities exchange or on the NASDAQ National Market if the Common
Stock is or becomes so listed;
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(j) use commercially reasonable efforts to keep effective and
maintain for the period specified in subparagraph (g) a registration,
qualification, approval or listing obtained to cover the Registrable Securities
as may be necessary for the Selling Holders to dispose thereof and shall from
time to time amend or supplement any prospectus used in connection therewith to
the extent necessary in order to comply with applicable law;
(k) use commercially reasonable efforts to cause the
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 Selling Holders to
consummate the disposition of such Registrable Securities; and
(l) take such other actions as are reasonably requested by the
Selling Holders or the underwriters, if any, in order to expedite, facilitate or
consummate the disposition of such Registrable Securities.
Each Selling Holder, upon receipt of notice from the Company of the
happening of any event of the kind described in subsection (e) of this Section
2.03, shall forthwith discontinue disposition of the Registrable Securities
until such Selling Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subsection (e) of this Section 2.03 or until it is
advised in writing by the Company that the use of the prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the Company,
such Selling Holder will, or will request the managing underwriter or
underwriters, if any, to, deliver to the Company (at the Company's expense) all
copies in their possession or control, other than permanent file copies then in
such Selling Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Company shall
give any such notice, (i) the Company shall comply with its obligation in
subsection (e) to rectify the untrue or omitted statements in the prospectus
within the time periods so specified and (ii) the time periods specified in
subsection (g) of this Section 2.03 shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each Selling Holder shall have received the copies
of the supplemented or amended prospectus contemplated by subsection (e) of this
Section 2.03 hereof or the notice that they may resume use of the prospectus.
In connection with each registration hereunder with respect to an
underwritten public offering, the Company and each Selling Holder agrees to
enter into a written agreement with the managing underwriter or underwriters
selected in the manner herein provided in such form and containing such
provisions as are customary in the securities business for such an arrangement
between underwriters and companies of the Company's size and investment stature,
provided that such agreement shall not contain any such provision applicable to
the Company or the Selling Holders that is inconsistent with the provisions
hereof; and further provided, that the time and place
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of the closing under said agreement shall be as mutually agreed upon among the
Company and the Selling Holders and such managing underwriter. Each Selling
Holder shall supply to the Company the information relating to such Selling
Holder that is required by the Securities Act and the rules and regulations
thereunder to be included in a Registration Statement which registers
Registrable Securities of such Selling Holder and each Selling Holder shall
execute all consents, powers of attorney, registration statements and other
documents reasonably required to be signed by such Selling Holder in order to
effectuate the registration or disposition of Registrable Securities by such
Selling Holder.
Section 1.04. Restrictions on Public Sale by the Company. To the extent
required by an underwriter in an underwritten public offering, the Company
agrees not to effect on its own behalf any public sale or distribution of any
securities similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities, during the 14 days before,
and during the 180-day period beginning on, the effective date of any
Registration Statement in which the Selling Holders of Registrable Securities
are participating, other than pursuant to such Registration Statement or a
Registration Statement on Form S-8 or Form S-4.
Section 1.05. Expenses.
(a) "Registration Expenses" means all expenses incident to the
Company's performance under or compliance with this Agreement, including without
limitation, all registration and filing fees, blue sky fees and expenses,
printing expenses, listing fees, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, costs of insurance and reasonable out-of-pocket expenses, but
excluding any Selling Expenses. "Selling Expenses" means all underwriting fees,
discounts and selling commissions allocable to the sale of the Registrable
Securities, underwriters' counsel fees and expenses in case of any demand
registration under Section 2, and all expenses incurred directly by the Selling
Holders for legal counsel.
(b) The Company will pay all Registration Expenses in
connection with each Registration Statement filed pursuant to this Agreement,
whether or not the Registration Statement becomes effective, and the Selling
Holders shall pay all Selling Expenses in connection with any Registrable
Securities registered pursuant to this Agreement.
Section 1.06. Indemnification. (a) In the event of a registration of
any Registrable Securities under the Securities Act pursuant to this Agreement,
the Company will indemnify and hold harmless each Selling Holder thereunder and
each underwriter, pursuant to the applicable underwriting agreement with such
underwriter, of Registrable Securities thereunder and each Person, if any, who
controls such Selling Holder or underwriter within the meaning of the Securities
Act and the Exchange Act, against any losses, claims, damages or liabilities
(including reasonable attorneys'
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fees) ("Losses"), joint or several, to which such Selling Holder or underwriter
or controlling Person may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such Losses, (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant to this
Agreement, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each such Selling Holder, each such underwriter and each such
controlling Person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such Loss or actions;
provided, however, that the Company will not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by such
Selling Holder, such underwriter or such controlling Person in writing
specifically for use in such Registration Statement or prospectus.
(b) Each Selling Holder agrees to indemnify and hold harmless
the Company, its directors, officers, employees and agents and each Person, if
any, who controls the Company within the meaning of the Securities Act or of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Selling Holder, but only with respect to information regarding such Selling
Holder furnished in writing by or on behalf of such Selling Holder expressly for
inclusion in any Registration Statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto; provided,
however, that the liability of such Selling Holder shall not be greater in
amount than the dollar amount of the proceeds (net of any Selling Expenses)
received by such Selling Holder from the sale of the Registrable Securities
giving rise to such indemnification.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party under this Section 2.06, unless the indemnifying party
shall have been prejudiced by such failure to give notice, and such failure to
give notice shall not relieve the indemnifying party from any obligation of
indemnification or contribution arising otherwise than under this Section 2.06.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 2.07
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for any legal expenses subsequently incurred by such indemnified party in
connection with the defense thereof; provided, however, that, (i) if the
indemnifying party has failed to assume the defense and employ counsel or (ii)
if the defendants in any such action include both the indemnified party and the
indemnifying party and counsel to the indemnified party shall have reasonably
concluded that the interests of the indemnified party conflict with the
interests of the indemnifying party, then the indemnified party shall have the
right to select a separate counsel reasonably acceptable to the indemnifying
party and to assume such legal defense and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such separate
counsel and other reasonable expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) If the indemnification provided for in this Section 2.06
is unavailable to the Company or the Selling Holders or is insufficient to hold
them harmless in respect of any Losses, 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 Losses as between the
Company on the one hand and each Selling Holder on the other, in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and of each Selling Holder on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and each
Selling Holder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statements of a material fact or
the omission or alleged omission to state a material fact has been made by, or
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.
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.
ARTICLE II
Section 2.01. Arbitration.
(a) Binding Arbitration. On the request of any of the
parties hereto, (whether made before or after the institution of any legal
proceeding), any action, dispute, claim or controversy of any kind now existing
or hereafter arising between any of the parties hereto in any way arising out
of, pertaining to or in connection with this Agreement (a "Dispute") shall be
resolved by binding arbitration in accordance with the terms hereof. Any party
may, by summary proceedings, bring an action in court to compel arbitration of
any Dispute.
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(b) Governing Rules. Any arbitration shall be
administered by the American Arbitration Association (the "AAA") in accordance
with the terms of this Section, the Commercial Arbitration Rules of the AAA,
and, to the maximum extent applicable, the Federal Arbitration Act. Judgment on
any award rendered by an arbitrator may be entered in any court having
jurisdiction.
(c) Arbitrators. Arbitration hereunder shall be
before a three-person panel of neutral arbitrators, consisting of one person
from each of the following categories: (1) an attorney who has practiced in the
area of commercial law for at least 10 years or a retired judge at the Texas or
United States District Court or an appellate court level: (2) a person with at
least 10 years experience in commercial lending: and (3) a person with at least
10 years experience in the petroleum industry. The AAA shall submit a list of
persons meeting the criteria outlined above for each category of arbitrator, and
the parties shall select one person from each category in the manner established
by the AAA. If the parties cannot agree on an arbitrator within 30 days after
the request for an arbitration, then any party may request the AAA to select an
arbitrator. The arbitrators may engage engineers, accountants or other
consultants that the arbitrator deems necessary to render a conclusion in the
arbitration proceeding.
(d) Conduct of Arbitration. To the maximum extent
practicable, an arbitration proceeding hereunder shall be concluded within 180
days of the filing of the Dispute with the AAA. Arbitration proceedings shall be
conducted in Houston, Texas. Arbitrators shall be empowered to impose sanctions
and to take such other actions as the arbitrators deem necessary to the same
extent a judge could impose sanctions or take such other actions pursuant to the
Federal Rules of Civil Procedure and applicable law. At the conclusion of any
arbitration proceeding, the arbitrator shall make specific written findings of
fact and conclusions of law. The arbitrators shall have the power to award
recovery of all costs and fees to the prevailing party. The parties agree to
keep all Disputes and arbitration proceedings strictly confidential except for
disclosure of information required by applicable law.
(e) Costs of Arbitration. All fees of the arbitrators
and any engineer, accountant or other consultant engaged by the arbitrators,
shall be paid by the disputing parties equally unless otherwise awarded by the
arbitrators.
Section 2.02. Communications. All notices and other communications
provided for or permitted hereunder shall be made in writing by telecopy,
courier service or personal delivery:
(a) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 3.02,
which address initially is, with respect to JEDI II, the address set forth in
the Securities Purchase Agreement, and
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(b) if to the Company, initially at its address set forth in
the Securities Purchase Agreement, and
(c) for each, thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 3.02.
All such notices and communications shall be deemed to have
been received at the time delivered by hand, if personally delivered; when
receipt acknowledged, if telecopied; and on the next business day if timely
delivered to an air courier guaranteeing overnight delivery.
Section 2.03. Successor and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including subsequent holders of Registrable Securities.
Section 2.04. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same Agreement.
Section 2.05. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 2.06. Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS AGREEMENT WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 2.07. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 2.08. Entire Agreement. This Agreement, together with the
Securities Purchase Agreement and the other Basic Documents (as defined in the
Securities Purchase Agreement) are intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Securities Purchase Agreement. This Agreement, the
Securities Purchase Agreement and the other Basic Documents supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
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Section 2.09. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorneys' fees in addition to its costs and expenses and
any other available remedy.
Section 2.10. Amendment. This Agreement may be amended only by means of
a written amendment signed by the Company and by the Holders of a majority of
the Registrable Securities.
Section 2.11. Registrable Securities Held by the Company or Its
Affiliates. In determining whether the Holders of the required amount of
Registrable Securities have concurred in any direction, amendment, supplement,
waiver or consent, Registrable Securities owned by the Company or one of its
subsidiaries shall be disregarded.
Section 2.12. Assignment of Rights. The rights of any Holder under this
Agreement may be assigned to any Person who acquires any Registrable Securities.
Any assignment of registration rights pursuant to this Section 3.12 shall be
effective only upon receipt by the Company of written notice from such assigning
Holder stating the name and address of any assignee. The rights of an assignee
under this Section 3.12 shall be the same rights granted to the assigning Holder
under this Agreement. In connection with any such assignment, the term "Holder"
as used herein shall, where appropriate to assign the rights and obligations of
the assigning Holder hereunder to such assignee, be deemed to refer to the
assignee.
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[SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SIERRA WELL SERVICE, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
JOINT ENERGY DEVELOPMENT
INVESTMENTS II LIMITED PARTNERSHIP
By: Enron Capital Management II Limited
Partnership, its General Partner
By: Enron Capital II Corp., its
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Title: Agent and ▇▇▇▇▇▇▇▇-▇▇-▇▇▇▇
▇-▇