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EXHIBIT 10.32
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SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BAYARD DRILLING TECHNOLOGIES, INC.
AND
THE STOCKHOLDERS
THAT ARE SIGNATORIES HERETO
OCTOBER __, 1997
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SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BAYARD DRILLING TECHNOLOGIES, INC.
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Agreement"), dated as of October __, 1997, is made by and
among, Bayard Drilling Technologies, Inc., a Delaware corporation (the
"Company"), and the stockholders and employee option holders of the Company
that are signatories hereto (the "Stockholders").
WITNESSETH:
WHEREAS, as of December 10, 1996, the Company and certain of
its stockholders entered into that certain Registration Rights Agreement (the
"Original Registration Rights Agreement"), pursuant to which the parties
thereto set forth certain agreements by and among the stockholders of the
Company party thereto and the Company with respect to certain registration
rights regarding shares of common stock, par value $.01 per share ("Common
Stock"), of the Company, owned by such stockholders of the Company; and
WHEREAS, as of April 30, 1997, the Company and certain of its
stockholders entered into that certain Amended and Restated Registration Rights
Agreement (as amended, the "First Amended and Restated Registration Rights
Agreement"), pursuant to which the parties thereto amended and restated the
Original Registration Rights Agreement in its entirety; and
WHEREAS, the Company and the other parties hereto desire to
amend and restate the First Amended and Restated Registration Rights Agreement
in its entirety;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the mutual benefits to be
gained by the performance thereof and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and accepted, the
parties hereto hereby agree as follows:
SECTION 1. Definitions. As used herein, the following
terms shall have the following meanings:
"AnSon Group" means the holders of 51% or more of the
Registrable Shares owned of record by the group comprised of AnSon
Partners Limited Partnership and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, III.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" has the meaning set forth in the Recitals
hereto.
"Common Stock Equivalent" means securities convertible into,
or exchangeable or exercisable for, shares of Common Stock, including
without limitation (i) the Series B Warrant held by Energy Spectrum
and (ii) any options granted by the Company to employees of the
Company; but not including the Subordinated Notes unless and until
they are converted into Common Stock.
"Company" has the meaning set forth in the Preamble hereto.
"Demand Registration" has the meaning set forth in Section
3(b) hereof.
"Demand Registration Request" has the meaning set forth in
Section 3(a) hereof.
"Demand Registration Request Initiator" has the meaning set
forth in Section 3(a) hereof.
"Distribution Registration Statement" has the meaning set
forth in the DLB Registration Rights Agreement.
"DLB Registration Rights Agreement" means that certain
Registration Rights Agreement, dated as of October 15, 1997, by and
among the Company, DLB Oil & Gas, Inc. and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation.
"Energy Spectrum" means Energy Spectrum Partners LP, a
Delaware limited partnership.
"Holdback Agreements" has the meaning set forth in Section 5
hereof.
"Included Securities" has the meaning set forth in Section 7
hereof.
"Indemnified Party" has the meaning set forth in Section 8(a)
hereof.
"Initial Public Offering" means the initial underwritten
public offering of shares of Common Stock registered under the
Securities Act pursuant to a Registration Statement on Form S-1
(Commission File No. 333-34451) of the Company.
"IPO Date" means the date of effectiveness of the Initial
Public Offering.
"Issuer Indemnified Party" has the meaning set forth in
Section 8(c) hereof.
"▇▇▇▇▇▇ Group" means the holders of 51% or more of the
Registrable Shares owned
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of record by the group comprised of ▇.▇. ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ Drilling,
Inc., RR&T, Inc., ▇▇▇▇▇▇ Family Trust, ▇▇▇▇▇▇-▇▇▇▇▇▇ Partnership, Ltd.,
Grupo de Hercules, Ltd., ▇▇▇▇ ▇▇▇▇▇▇ Energy Equipment Resource, Inc.
and ▇▇▇▇ ▇▇▇▇▇▇.
"Participating Holders" has the meaning set forth in Section 7
hereof.
"Person" means an individual, partnership, corporation,
limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization or governmental entity or
any department, agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section
4 hereof.
"Piggyback Registration Notice" has the meaning set forth in
Section 4 hereof.
"Registrable Shares" means at any time any shares of Common
Stock owned by the Stockholders, whether acquired on the date hereof
or hereafter acquired, including without limitation, any shares of
Common Stock issuable upon the conversion, exchange or exercise of
Common Stock Equivalents owned by the Stockholders; provided, however,
that Registrable Shares shall not include any shares (i) the sale of
which has been registered pursuant to a registration statement filed
under the Securities Act which has been declared effective or (ii)
which may be otherwise transferred without restriction (including
volume restrictions) under Rule 144 or any similar successor rule or
provision then in force.
"Registration Expenses" has the meaning set forth in Section 6
hereof.
"Requesting Holders" has the meaning set forth in Section 3(a)
hereof.
"Securities Act" means the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and
regulations promulgated thereunder, all as the same may be in effect
from time to time.
"Securities Exchange Act" means the Securities Exchange Act
of 1934, as amended, or any successor federal statute, and the rules
and regulations promulgated thereunder, all as the same may be in
effect from time to time.
"Selling Holder" means a holder who is selling Registrable
Shares which are registered pursuant to the Securities Act as
contemplated by this Agreement.
"Selling Indemnified Party" has the meaning set forth in
Section 8(a) hereof.
"Series B Warrant" means that certain Series B Warrant,
exercisable for 66,000 shares
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of Common Stock at an exercise price of $7.50 per share, issued by the
Company to Energy Spectrum as of April 30, 1997.
"Share Value" means the average market price per share of
Common Stock on the principal national securities exchange or
quotation system on which the Common Stock is then traded or quoted
for the ten day trading period ending on the day prior to the
determination date.
"Stockholders" has the meaning set forth in the Preamble
hereto.
"Subordinated Notes" means that certain subordinated note of
the Company, issued to Energy Spectrum, due May 1, 2003, in the
original principal amount of $2,520,000, and any additional
subordinated notes of the Company which are issued as interest
thereon.
"▇▇▇▇ Group" means the holders of 51% or more of the
Registrable Shares owned of record by the group comprised of ▇▇▇▇
Drilling, Inc., L.O. ▇▇▇▇, ▇▇▇-Cas Investments, A. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ and N. ▇▇▇▇ ▇▇▇▇▇▇▇▇.
SECTION 2. Effectiveness; Amended and Restated Agreement.
This Agreement shall become effective, and the First Amended and Restated
Registration Rights Agreement shall be amended and restated in its entirety as
set forth herein, upon the later of (i) the execution and delivery of this
Agreement by the Company and the stockholders of the Company who are parties to
the First Amended and Restated Registration Rights Agreement and who hold more
than 50% of the Registrable Shares and (ii) the IPO Date.
SECTION 3. Demand Registration.
(a) Requests for Registration. Subject to the
limitations set forth in this Section 3, at any time Energy Spectrum,
the AnSon Group, the ▇▇▇▇▇▇ Group or the ▇▇▇▇ Group may request the
Company to register under the Securities Act, on the number of
occasions specified in clause (iv) of Section 3(c), all or any part of
the Registrable Shares held by Energy Spectrum, the AnSon Group, the
▇▇▇▇▇▇ Group or the ▇▇▇▇ Group, as applicable (a "Demand Registration
Request"). Within 10 days of receipt by the Company of a Demand
Registration Request, the Company shall give written notice of such
request to all other holders of Registrable Shares. Such holders shall
have the right to join the Demand Registration Request by delivery of
written notice to the Company of such intention, which notice shall
include the number of Registrable Shares that each such additional
holder intends to have the Company register in response thereto. The
Person or group of Persons making the Demand Registration Request
shall be referred to herein as the "Demand Registration Request
Initiator." All holders of Registrable Shares that
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participate in any such demand registration shall be referred to herein
as "Requesting Holders."
(b) Registration by the Company. Unless the Company
has the right to refuse registration pursuant to Section 3(c) hereof,
the Company shall file a registration statement under the Securities
Act covering the Registrable Shares which are the subject of any
Demand Registration Request as soon as practicable after receipt by
the Company of any such Demand Registration Request (each, a "Demand
Registration"); provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration
would be seriously detrimental to the Company (or any proposed
acquisition or disposition of assets or properties) and the Board of
Directors of the Company concludes, as a result, that it is essential
to defer the filing of such registration statement at such time, and
(ii) the Company shall furnish all Requesting Holders a certificate
signed by the President of the Company stating that, in the good faith
judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company for such registration statement
to be filed in the near future and that it is, therefore, essential to
defer the filing of such registration statement, then the Company
shall have the right to defer such filing for the period during which
such disclosure would be seriously detrimental; provided, however,
that the Company may not defer the filing of a registration statement
for a period of more than 120 days after receipt of the Demand
Registration Request of the Requesting Holders, and, provided further,
that the Company shall not defer its obligation in this manner more
than once in any twelve-month period and shall give written notice to
the Requesting Holders immediately after the reason for deferring the
filing of the registration statement has ceased to exist. The Company
shall not be required to register any Registrable Shares during any
period in which it has exercised its deferral right as aforesaid.
(c) Demand Registration Limitations. The demand
registration rights set forth in this Section 3 may be exercised only
in accordance with the following limitations:
(i) The holders of Registrable Shares shall
have the right to exercise demand registration rights under
this Section 3 only after the 180th day after the IPO Date.
(ii) The holders of Registrable Shares
shall not have any right to exercise demand registration
rights under this Section 3 at any time after the third
anniversary of the IPO Date.
(iii) The Company shall not be required to
make any Demand Registrations pursuant to this Section 3
unless the aggregate Share Value of all Registrable Shares
proposed to be registered in connection therewith shall equal
or exceed $20 million.
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(iv) Each of Energy Spectrum, the AnSon
Group, the ▇▇▇▇▇▇ Group and the ▇▇▇▇ Group shall have the
right to require the Company to file up to two Demand
Registrations with the Commission; provided, however, that
the Company shall be required to effect not more than one
Demand Registration pursuant to this clause (iv) unless and
until it is qualified to register the Registrable Shares on
Form S-3 promulgated under the Securities Act.
(v) Provided the Company is actively
employing in good faith all reasonable efforts to cause such
registration statements to become effective, the Company
shall not be required to make any Demand Registration
pursuant to this Section 3 during the period ending 90 days
after the effective date of any registration under the
Securities Act by the Company of shares of Common Stock or
other equity securities, other than in connection with an
employee benefit plan, dividend reinvestment plan or merger,
consolidation or other business combination.
(d) Priority on Demand Registrations. The
registration statement filed pursuant to the Demand Registration
Request of the Requesting Holders may, subject to the limitations set
forth below, include other securities of the Company, with respect to
which registration rights have been granted, and may include
securities of the Company being sold for the account of the Company.
If a Demand Registration is an underwritten public offering and the
managing underwriters advise the Company in writing that in their
opinion the number of Registrable Shares and other securities
requested to be included exceeds the number of Registrable Shares and
other securities which can be sold in such offering, the Company shall
include in such registration, prior to the inclusion of any securities
to be sold by the Company or any other securities which are not
Registrable Shares, (i) first the number of Registrable Shares
requested to be included by the Demand Registration Request Initiator
and (ii) second, the number of Registrable Shares requested to be
included, pro rata among the Requesting Holders other than the Demand
Registration Request Initiator on the basis of the number of
Registrable Shares owned by such Requesting Holders.
(e) Underwriters. The managing underwriter or
underwriters for any Demand Registration shall be selected by the
holders of a majority of the Registrable Shares to be included in such
Demand Registration, which managing underwriter or underwriters shall
be reasonably acceptable to the Company.
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SECTION 4. Piggyback Registration.
(a) Right to Piggyback. If at any time the Company
proposes to file a registration statement under the Securities Act
with respect to any underwritten offering of any securities of the
Company, other than (i) a registration statement on Form S-4 or S-8
(or any substitute form for comparable purposes that may be adopted by
the Commission), (ii) a registration statement filed in connection
with an exchange offer or an offering of securities solely to the
Company's existing security holders or (iii) the Distribution
Registration Statement, the Company shall in each case give written
notice (a "Piggyback Registration Notice") of such proposed filing of
such registration statement (a "Piggyback Registration") to all
holders of Registrable Shares as soon as practicable, but in no event
less than 20 days before the anticipated filing date, and shall,
subject to Section 4(b) hereof, include in such registration statement
all Registrable Shares with respect to which the Company has received
written requests for inclusion therein within 15 days after the
Piggyback Registration Notice is received by all such holders.
(b) Priority in Piggyback Registrations. If the
managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in a
registration exceeds the number which can be sold in such offering,
the Company shall include in such registration (i) first, the
securities of the Company proposed to be registered as described in
the Piggyback Registration Notice and (ii) second, the Registrable
Shares and other securities requested to be included in such
registration, pro rata among the holders of all such Registrable
Shares and other securities requested to be included on the basis of
the then number of Registrable Shares and other securities requested
to be included by each such holder.
(c) Right to Withdraw. Notwithstanding anything to
the contrary, neither the delivery of a Piggyback Registration Notice
by the Company nor of the request by the holder of the Registrable
Shares shall in any way obligate the Company to file, or the holder of
the Registrable Shares to have such shares included in, a registration
statement under this Section 4 and notwithstanding such filing, the
Company may, at any time prior to the effective date thereof, in its
sole discretion, determine not to offer the securities to which the
registration statement relates without liability to any of the holders
of the Registrable Shares, and any holder may determine not to include
its Registrable Shares therein without liability.
(d) Selection of Underwriters. The managing
underwriter or underwriters for any Piggyback Registration shall be
selected by the Company, by action of the Board of Directors.
SECTION 5. Holdback Agreements. In the event that
Registrable Shares are registered by the Company pursuant to Section 3
or 4 hereof, the holders of any such Registrable
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Shares shall enter into such agreements, including underwriting agreements and
lock-up agreements, as the managing underwriter of any underwritten public
offering registered under the Securities Act shall reasonably request
(collectively, "Holdback Agreements"); provided, however, that (i) with respect
to an initial public offering of shares of Common Stock, such Holdback
Agreements shall not exceed a period of 14 calendar days prior to, and 180
calendar days after, the effective date of such registration, and (ii) with
respect to any subsequent registrations, such Holdback Agreements shall not
exceed a period of 14 calendar days prior to, and 120 calendar days after, the
effective date of such registration.
SECTION 6. Registration Procedures. Whenever the
holders of Registrable Shares have requested that any Registrable Shares be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Shares in accordance
with the intended method of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Shares and use
its best efforts to cause such registration statement to become and
remain effective for such period as may be reasonably necessary to
effect the sale of such securities, in any case not to exceed six
months;
(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 a period of not more than
six months 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 Holders set forth in
such registration statement;
(c) furnish, without charge, to each Selling Holder
and the underwriters of the securities being registered such number of
copies of such registration statement, each amendment and supplement
thereto, in each case including all exhibits, the prospectus included
in such registration statement, including each preliminary prospectus,
and such other documents as each such Selling Holder or underwriters
may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by each such Selling Holder or the sale of
such securities by such underwriters;
(d) use its best efforts to register or qualify such
Registrable Shares under the securities or blue sky laws of such
jurisdictions as each Selling Holder shall reasonably request and do
any and all other acts and things which may be reasonably necessary or
advisable to enable each such Selling Holder to consummate the
disposition in such jurisdictions of the Registrable Shares owned by
such Selling Holder, provided, however, that the Company shall not be
required to (i) qualify generally to do business in
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any jurisdiction where it would not otherwise be required to qualify
but for this Section 6(d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
such jurisdiction;
(e) (i) cause all such Registrable Shares covered by
such registration statement to be listed on the principal securities
exchange on which shares of Common Stock are then listed, if any, if
the listing of such Registrable Shares is then permitted under the
rules of such exchange, or (ii) if shares of Common Stock are not then
so listed, cause all such Registrable Shares to be listed on a
national securities exchange or, failing that, secure designation of
all such Registrable Shares as a Nasdaq Stock Market "national market
system security" within the meaning of Rule 1lAa2-1 of the Commission
or, failing that, secure Nasdaq Stock Market authorization for such
shares and, without limiting the generality of the foregoing, take all
actions that may be required by the Company as the issuer of such
Registrable Shares in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as such
with respect to such shares with the National Association of
Securities Dealers, Inc.;
(f) provide and cause to be maintained a transfer
agent and registrar for all such Registrable Shares not later than the
effective date of such registration statement;
(g) enter into such customary agreements, including
underwriting agreements in customary form, and take all such other
actions as the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares;
(h) upon receipt of such confidentiality agreements
as the Company may reasonably request, make reasonably available for
inspection by the Selling Holders, any underwriter participating in
any disposition pursuant to such registration statement, and any
attorney, accountant or other agent retained by any such Selling
Holders or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants
to supply all information reasonably requested by any such Selling
Holder, underwriter, attorney, accountant or agent in connection with
such registration statement;
(i) promptly notify each Selling Holder, (i) of the
time when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to the registration statement has been filed
and, with respect to the registration statement or any post-effective
amendment, when the same has become effective and (ii) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of any Registrable Shares for sale under the
securities or blue sky laws of any jurisdiction or the initiation of
any proceeding for such purpose;
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(j) notify each Selling Holder of any requests by the
Commission for the amending or supplementing of such registration
statement or prospectus or for additional information;
(k) prepare and file with the Commission, promptly
upon the request of any Selling Holder, any amendments or supplements
to such registration statement or prospectus which, in the opinion of
counsel selected by the holders of a majority of the Registrable
Shares being registered, is required under the Securities Act or the
rules and regulations thereunder in connection with the distribution
of Registrable Shares by such Selling Holder;
(l) prepare and promptly file with the Commission,
and promptly notify each Selling Holder of the filing of, such
amendments or supplements to such registration statement or prospectus
as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred as
the result of which any such prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading;
(m) advise each Selling Holder, promptly after the
Company 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 all
reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued;
(n) provide notice within a reasonable amount of
time prior to the filing of any registration statement or prospectus
of any amendment or supplement to such registration statement or
prospectus, furnish a copy thereof to each Selling Holder and refrain
from filing any such registration statement, prospectus, amendment or
supplement to which counsel selected by the holders of a majority of
the Registrable Shares being registered shall have reasonably objected
on the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act or
the rules and regulations thereunder, unless, in the case of an
amendment or supplement, the Company reasonably believes the filing of
such amendment or supplement is reasonably necessary to protect the
Company from any liabilities under any applicable federal or state
law;
(o) at the request of any Selling Holder in
connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement: (i) an opinion of counsel,
addressed to the underwriters and the Selling
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Holders, covering such matters as such underwriters may reasonably
request, including, without limiting the generality of the foregoing,
opinions to the effect that (A) such registration statement has become
effective under the Securities Act; (B) to the best of such counsel's
knowledge no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act; (C) the registration
statement, the prospectus, and each amendment or supplement thereto
comply as to form in all material respects with the requirements of
the Securities Act and the applicable rules and regulations of the
Commission thereunder, except that such counsel need express no
opinion as to financial statements or other financial or statistical
data contained therein; and (ii) a "cold comfort" letter or letters
from the independent certified public accountants of the Company
addressed to the underwriters and the Selling Holders, covering such
matters as such underwriters may reasonably request, in which letters
such accountants shall state, without limiting the generality of the
foregoing, that they are independent certified public accountants
within the meaning of the Securities Act and that in the opinion of
such accountants the financial statements and other financial data of
the Company included in the registration statement, the prospectus, or
any amendment or supplement thereto comply in all material respects
with the applicable accounting requirements of the Securities Act;
(p) deliver promptly to each Selling Holder and each
underwriter, if any, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission or its staff with respect
to the registration statement, other than those portions of any such
correspondence and memoranda which contain information subject to
attorney-client privilege with respect to the Company;
(q) provide a CUSIP number for all Registrable
Shares, not later than the effective date of the registration
statement;
(r) make reasonably available its employees and
personnel and otherwise provide reasonable assistance to the
underwriters, taking into account the needs of the Company's business
and the requirements of the marketing process, in the marketing of
Registrable Shares in any underwritten offering;
(s) promptly prior to the filing of any document
which is to be incorporated by reference into the registration
statement or the prospectus, after the initial filing of such
registration statement, provide copies of such document to counsel to
the Selling Holders of Registrable Shares and to the managing
underwriter, if any, and make the Company's representatives reasonably
available for discussion of such document and make such changes in
such document prior to the filing thereof as counsel for such Selling
Holders or underwriters may reasonably request;
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(t) furnish to each Selling Holder and the managing
underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits, including those
incorporated by reference;
(u) comply with all applicable rules and regulations
of the Commission, and make generally available to its security
holders, as soon as reasonably practicable after the effective date of
the registration statement, and in any event within 16 months
thereafter, an earnings statement (which need not be audited) covering
the period of at least 12 consecutive months beginning with the first
day of the Company's first calendar quarter after the effective date
of the registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(v) take all such other commercially reasonable
actions as are necessary or advisable in order to expedite or
facilitate the disposition of such Registrable Shares.
SECTION 7. Registration Expenses. Except as otherwise
expressly provided herein, all expenses incident to the Company's performance
of or compliance with this Agreement, including without limitation, all
registration and filing fees, fees and expenses of compliance with securities
or blue sky laws, including a blue sky survey and the related fees and expenses
of counsel, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and its independent certified public
accountants, and other Persons (including experts) retained by the Company, and
all other fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (all such expenses being herein called "Registration
Expenses"), shall be paid as follows:
(a) In the case of a Demand Registration pursuant to
Section 3 hereof, by the Selling Holders and all other holders
(collectively, the "Participating Holders") of Registrable Shares and
other securities, if any (collectively, the "Included Securities"),
being sold pursuant to a registration statement filed as contemplated
thereby (or, if satisfactory arrangements for the reimbursement
thereof shall be agreed to in advance by the Company and such holders,
shall be paid by the Company and reimbursed by the Participating
Holders), pro rata among the Participating Holders on the basis of the
number of the Included Securities being sold by each of them;
provided, however, that to the extent that any Included Securities are
not sold and the Participating Holder who owns such Included
Securities does not receive any proceeds, directly or indirectly, then
such Participating Holder shall not be obligated to reimburse the
Company for such Participating Holder's pro rata share of the
Registration Expenses. In addition, each Participating Holder shall
pay all underwriting discounts, commissions or similar charges
attributable to the sale of Included Securities.
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(b) In the case of a Piggyback Registration pursuant
to Section 4 hereof, by the Company, provided, however, that each
Participating Holder shall pay all underwriting discounts, commissions
or similar charges attributable to the sale of Included Securities.
(c) The Company shall pay its internal expenses,
including without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties, the
expense of any annual audit or quarterly review, the expense of any
liability insurance obtained by the Company and the expenses and fees
for listing the securities so registered on each securities exchange
on which any shares of common stock are then listed or on the Nasdaq
Stock Market.
SECTION 8. Indemnification and Contribution.
(a) Indemnification by the Company. The Company
shall indemnify and hold harmless to the fullest extent permitted by
law each Selling Holder, its officers, directors, fiduciaries,
stockholders, partners (and the directors, officers, employees and
stockholders thereof) and agents and each person, if any, who controls
such Selling Holder within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act (collectively, the "Selling
Indemnified Parties" and, individually, a "Selling Indemnified
Party"), from and against any and all losses, claims, damages, whether
in contract, tort or otherwise, liabilities, expenses, actions and
proceedings, whether commenced or threatened, in respect thereof,
including reasonable costs of investigation, counsel fees and amounts
paid in settlement, whatsoever (as incurred or suffered) arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or preliminary,
final or summary prospectus relating to the Registrable Shares or in
any amendment or supplement thereto, 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, except insofar as such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any
such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such Selling Holder
or on such Selling Holder's behalf expressly for use therein. The
Company shall also indemnify any underwriters of the Registrable
Shares, their officers, partners and directors and each person who
controls such underwriters on substantially the same basis as that of
the indemnification of the Selling Indemnified Parties provided in
this Section 8 or to provide such other indemnification customarily
obtained by underwriters at the time of offering.
(b) Conduct of Indemnification Proceedings. If
any action or proceeding, including any governmental investigation,
shall be brought or asserted against any Selling Indemnified Party in
respect of which indemnity may be sought from the Company, the Company
shall, at its expense, assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Selling
Indemnified Party. Such
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Selling 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 expense of
such Selling Indemnified Party unless (i) the Company has agreed to
pay such fees and expenses, (ii) the Company fails to diligently
defend the action or proceeding within 20 days after receiving notice
from the Selling Indemnified Party that the Selling Indemnified Party
believes the Company has so failed or (iii) the named parties to any
such action or proceeding, including any impleaded parties, include
both such Selling Indemnified Party and the Company, and such Selling
Indemnified Party shall have been advised by counsel that there may be
a conflict of interest between any of the parties, or that
representation of the Selling Indemnified Party and the Company is
otherwise inappropriate under applicable standards of professional
conduct, or one or more legal defenses are available to such Selling
Indemnified Party which are different from or additional to those
available to the Company; in which case, if such Selling Indemnified
Party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not
have the right to assume the defense of such action or proceeding on
behalf of such Selling Indemnified Party; it being understood,
however, that the Company 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 all such Selling
Indemnified Parties, which firm shall be designated in writing by a
majority of the Selling Indemnified Parties. The Company shall not be
liable for any settlement of any such action or proceeding effected
without the Company's written consent, but if settled with its written
consent, which consent shall not be unreasonably withheld or delayed,
or if there be a final judgment no longer subject to appeal for the
plaintiff in any such action or proceeding, the Company agrees to
indemnify and hold harmless such Selling Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason
of such settlement or judgment.
(c) Indemnification by Holders of Registrable
Shares. Each Selling Holder shall severally, but not jointly,
indemnify and hold harmless the Company, its directors, officers,
fiduciaries, stockholders and agents and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Act or Section 20 of the Securities Exchange Act (collectively, the
"Issuer Indemnified Parties" and, individually, an "Issuer Indemnified
Party" and, together with a Selling Indemnified Party an "Indemnified
Party"), to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with respect to information
furnished in writing by such Selling Holder or on such Selling
Holder's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Shares, or any amendment or
supplement thereto, or any preliminary prospectus; provided, however,
that to the extent that this indemnity arises from any untrue
statement or alleged untrue statement or omission or alleged omission
contained in any registration statement or in any prospectus
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relating to the Registrable Shares or in any amendment or supplement
thereto, the liability of each Selling Holder shall be limited to the
amount of the gross proceeds received by such Selling Holder from the
offering. In case any action or proceeding shall be brought against an
Issuer Indemnified Party, in respect of which indemnity may be sought
against such Selling Holder, such Selling Holder shall have the rights
and duties given to the Company, and the Issuer Indemnified Parties
shall have the rights and duties given to such Selling Holder, by the
preceding Section 8(b) hereof. Each Selling Holder shall also
severally, but not jointly, indemnify and hold harmless underwriters
of the Registrable Shares, their officers, directors, fiduciaries,
stockholders and agents and each person who controls such underwriters
on substantially the same basis as that of the indemnification of the
Company provided in this Section 8.
(d) Contribution. If the indemnification provided
for in this Section 8 is unavailable to any Indemnified Party in
respect of any losses, claims, damages, liabilities, expenses, actions
or proceedings referred to herein, then each such indemnifying party,
in lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages, liabilities, expenses, actions and
proceedings (i) as between the Issuer Indemnified Parties and the
Selling Indemnified Parties on the one hand and the underwriters on
the other, in such proportion as is appropriate to reflect the
relative benefits received by the Issuer Indemnified Parties and the
Selling Indemnified Parties on the one hand and the underwriters on
the other from the offering of the Registrable Shares, or if such
allocation is not permitted by applicable law, in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Issuer Indemnified Parties and the Selling
Indemnified Parties on the one hand and of the underwriters on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities, expenses actions or
proceedings, as well as any other relevant equitable considerations
and (ii) as between the Issuer Indemnified Parties, on the one hand,
and each Selling Indemnified Party on the other, in such proportion as
is appropriate to reflect the relative fault of the Issuer Indemnified
Parties and of each Selling Indemnified Party in connection with such
statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Issuer
Indemnified Parties and the Selling Indemnified Parties on the one
hand and the underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering, net of
underwriting discounts and commissions but before deducting expenses,
received by the Issuer Indemnified Parties and the Selling Indemnified
Parties bear to the total underwriting discounts and commissions
received by the underwriters, in each case as set forth in the table
on the cover page of the prospectus. The relative fault of the Issuer
Indemnified Parties and the Selling Indemnified Parties on the one
hand and of the underwriters on the other 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
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the Issuer Indemnified Parties and the Selling Indemnified Parties or
by the underwriters. The relative fault of the Issuer Indemnified
Parties on the one hand and of each Selling Indemnified Party on the
other 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 Holders hereby agree
that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation, even if the
underwriters were treated as one entity for such purpose, or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages, liabilities, expenses, actions
or proceedings referred to in the immediately preceding paragraph
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 claim. Notwithstanding the provisions of this Section
8(d), no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, and no Selling
Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Shares of
such Selling Holder were offered to the public exceeds the amount of
any damages 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 was not guilty of such
fraudulent misrepresentation. Each Selling Holder's obligation to
contribute is several in the proportion that the proceeds of the
offering received by such Selling Holder bears to the total proceeds
of the offering, and not joint.
(e) Settlement or Compromise. No indemnifying party
shall without the written consent of the Indemnified Party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder,
whether or not the Indemnified Party is an actual or potential party
to such action or claim, unless such settlement, compromise or
judgment (i) includes an unconditional release of the Indemnified
Party from all liability arising out of such action or claim and (ii)
does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified
Party.
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(f) Rights not Exclusive. The indemnity agreements
contained in this Section 8 shall be in addition to any other rights
to indemnification or contribution which any Indemnified Party may
have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted
by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Shares by any such party.
SECTION 9. Compliance with Rule 144. When it is first legally
required to do so, the Company shall register a class of securities under
Section 12 of the Securities Exchange Act, and commence to file reports under
Section 13 or 15(d) of the Securities Exchange Act. Thereafter at the request
of any holder who proposes to sell securities in compliance with Rule 144
promulgated by the Commission under the Securities Act, the Company shall (i)
forthwith furnish to such holder a written statement of compliance with the
filing requirements of the Commission as set forth in Rule 144 as such rule may
be amended from time to time and (ii) timely file and make available to the
public and such holders such reports and other information as will enable the
holders to make sales pursuant to Rule 144.
SECTION 10. 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, (b) provides all such
information as is reasonably required to effect such registration and completes
and executes all undertakings, questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements or applicable laws, and (c) complies with all
other reasonable requests of the managing underwriter and with the Company and
complies with all other reasonable requests related to such registration.
SECTION 11. Remedies. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
SECTION 12. Amendments and Waivers. Except as otherwise
expressly provided herein, the provisions of this Agreement may be amended or
waived at any time only by the written agreement of the Company and the holders
of a majority of the Registrable Shares. Any waiver, permit, consent or
approval of any kind or character on the part of any such holders of any
provision or condition of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in writing.
SECTION 13. Successors and Assigns. Except as otherwise
expressly provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto,
whether so express or not.
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SECTION 14. Final Agreement. This Agreement constitutes
the final agreement of the parties hereto concerning the matters referred to
herein, and supersedes all prior agreements and understandings with respect to
the subject matter hereof.
SECTION 15. Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 16. Descriptive Headings. The descriptive
headings of this Agreement are inserted for convenience of reference only and do
not constitute a part of and shall not be utilized in interpreting this
Agreement.
SECTION 17. Notices. Any notices required or permitted to
be sent hereunder shall be delivered by hand, by telex or telecopier, or by
certified or registered mail, postage prepaid and return receipt requested, or
delivered by overnight courier service to the following addresses, or such other
addresses as shall be given by notice delivered hereunder. Notices shall be
deemed to have been given upon delivery, if delivered by hand, three business
days after mailing, if mailed, or one business day after delivery to the
courier, if delivered by overnight courier service, and upon receipt of an
appropriate electronic confirmation, if by telex or telecopier:
If to the holders of Registrable Shares, to the addresses set
forth on the stock record books of the Company.
If to the Company, to:
Bayard Drilling Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
SECTION 18. Governing Law. The validity, meaning and
effect of this Agreement shall be determined in accordance with the laws of the
State of Delaware applicable to contracts made and to be performed in that
state.
SECTION 19. Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute one
instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it and the Company.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
THE COMPANY:
BAYARD DRILLING TECHNOLOGIES, INC.
By:
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
THE STOCKHOLDERS:
ANSON LIMITED PARTNERSHIP
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
ENERGY SPECTRUM PARTNERS LP
By: Energy Spectrum Capital LP,
its General Partner
By: Energy Spectrum LLC,
its General Partner
By:
-------------------------
Name:
-----------------------
Title:
----------------------
21
▇▇▇▇ ▇▇▇▇▇▇ ENERGY EQUIPMENT
RESOURCE, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
GRUPO DE HERCULES, LTD.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Rig Investments Group, Inc.
General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇ PARTNERSHIP, LTD.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Rig Investments Group, Inc.
General Partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
RR & T, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
▇.▇. ▇▇▇▇▇▇ DRILLING, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
22
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ FAMILY TRUST
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CHESAPEAKE ENERGY CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CONTINENTAL ILLINOIS PROPERTY
CORPORATION #3
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustee of the
▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Inter
Vivos Trust dated April 23, 1984
-----------------------------------
L. O. ▇▇▇▇
▇▇▇-CAS INVESTMENTS, L.P.
By:
--------------------------------
General Partner
EMPLOYEE OPTION HOLDERS:
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇