EXHIBIT 2.17
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") dated as of June 4,
1997, is entered into by and between NEWPARK RESOURCES, INC., a Delaware
corporation ("Newpark"), and each of the Persons whose names and addresses are
listed on Exhibit "A" attached to this Agreement (each a "Holder" and
collectively the "Holders"), with reference to the following facts:
A. Holders are entitled to receive an aggregate of 35,556 shares (the
"Shares") of Newpark's common stock, $.01 par value (the "Common Stock"), upon
the exchange (the "Exchange") of 100% of the equity interests in FMI WHOLESALE
DRILLING FLUIDS, U.S.A., L.P., a Texas limited partnership (the "Company"),
pursuant to the Agreement and Plan of Reorganization (the "Exchange Agreement")
among Newpark, certain Newpark subsidiaries identified in the Exchange
Agreement, and the "Partners" so identified in the Exchange Agreement (each of
whom is a Holder). Because the Shares are being issued pursuant to an exemption
from the registration provisions of the Securities Act, resale of the Shares
without registration under the Securities Act is subject to restrictions.
B. In order to satisfy a condition precedent to the Exchange, this
Agreement obligates Newpark to use its best efforts to register some of the
Shares under the Securities Act at certain times.
NOW, THEREFORE, in consideration of the premises set forth above and
the mutual promises and covenants hereinafter set forth, the parties agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
Common Stock - As defined in Paragraph A above.
Exchange Act - The Securities Exchange Act of 1934, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
Holder or Holders - As defined in the introduction to this Agreement.
Holder Party or Parties - As defined in Paragraph 6.1 below.
Participating Holder or Holders - Each Holder or all Holders for whom
Shares are included in a registration statement filed under the Securities Act.
Person or person - An individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any department
or agency thereof.
Registration Expenses - Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation: (i) all
SEC and stock exchange or National Association of Securities Dealers
registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Shares), (iii) all printing, messenger and delivery expenses, (iv) the fees and
disbursements of counsel for Newpark and of its independent public accountants,
(v) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, including liability insurance if Newpark so desires, and
(vi) the reasonable fees and expenses of any special experts retained by Newpark
in connection with the requested registration, but excluding underwriting
discounts and commissions and transfer taxes, if any, applicable to
Participating Holders' Shares.
Rule 144 - Rule 144 under the Securities Act, as amended from time to
time, or any successor Rule.
Rules and Regulations - The rules and regulations promulgated by the
SEC under the Securities Act and the Exchange Act.
Securities Act - The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
SEC - The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
Shares - As defined in Paragraph A above.
2. Demand Registration Rights.
(a) Demand by Holders. Subject to the further terms and conditions of
this Agreement and the Exchange Agreement, if, during the period commencing
August 1, 1997 and continuing for 180 days, one or more Holders request in
writing to Newpark that Newpark effect the registration under the Securities Act
of up to fifty-one percent (51%) of the Shares (which request shall specify the
number of Shares intended to be disposed of by each Holder and the intended
method of disposition thereof), Newpark will promptly give notice of such
requested registration to all other Holders and thereafter will use its best
efforts to effect such registration of (i) the Shares which Newpark has been so
requested to register by such Holders and (ii) all other Shares which Newpark
has been requested to register by other Holders by written requests delivered to
Newpark within 20 days after the giving of such written notice by Newpark (which
requests shall specify the intended method of disposition of such other Holders'
Shares), all for disposition in accordance with the intended methods of
disposition stated in the requests of such Holders.
(b) Priorities in Demand Registrations. Subject to clauses (i) and
(ii) below, Newpark may include in any registration statement filed in response
to Holders' requests other shares of Common Stock for sale by Newpark or by
other stockholders, provided, however, that (i) if such registration statement
relates to an underwritten offering and the managing underwriter or underwriters
advise Newpark in writing that, in its or their opinion, the number of shares of
Common Stock requested to be included in such registration would have a material
adverse effect on such offering (including, without limitation, a material
decrease in the price at which such
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shares can be sold), then the number of shares of Common Stock included in the
offering shall be reduced, and the Shares and the other shares of Common Stock
to be included in the offering shall participate in such offering as follows:
(x) the Shares to be sold by Holders shall have priority over all shares of
Common Stock to be offered by Newpark and other stockholders of Newpark, and (y)
if shares of Common Stock in excess of Holders' Shares can, in the good faith
judgment of such managing underwriter or underwriters, successfully be marketed
in such offering, such excess shares shall be included in such offering in such
proportions as may be agreed between Newpark and such other stockholders; and
(ii) if such offering is not underwritten, then no other shares of Common Stock
shall be included in such registration statement unless Holders consent to the
inclusion of such shares therein, which consent shall not be unreasonably
withheld.
(c) Only One Demand Registration. Holders shall not be entitled to
make a request pursuant to this Paragraph 2 more than one time, provided that
the registration so requested is actually effected and remains in effect in
accordance with Paragraph 5.1(b).
3. Incidental Registration Rights.
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(a) Right to Include Shares. Subject to the further terms and
conditions of this Agreement and the Exchange Agreement, if Newpark at any time
proposes to register any Common Stock on any form for the registration of
securities under the Securities Act (other than Form S-4 and Form S-8), Newpark
will at such time give prompt written notice to Holders of its intention to do
so and of Holders' rights under this Paragraph 3. Upon the written request of
any Holders made within 20 days after receipt of any such notice that up to
fifty-one percent (51%) of the Shares be included in such registration (which
request shall specify the number of Shares intended to be disposed of by each
Holder desiring to participate and the intended method of disposition thereof),
Newpark will cause the Shares for which Holders have requested registration to
be included in the registration statement filed with respect to such
registration under the Securities Act, provided that (i) if, at any time after
giving written notice of its intention to register Common Stock but prior to the
effective date of the registration statement filed in connection with such
registration, Newpark shall determine for any reason not to register such Common
Stock, Newpark may, at its election, give written notice of such determination
to Holders, and, thereupon, shall be relieved of its obligation to register any
Shares in such registration, and (ii) if such registration involves an
underwritten offering, Holders must sell their Shares (if Holders continue to
desire such Shares to be registered) to the underwriters of such offering on the
same terms and conditions as apply to Newpark or the stockholders for whose
account securities are to be sold, as the case may be.
(b) Priorities in Incidental Registrations. In connection with any
registration pursuant to this Paragraph 3 involving an underwritten offering, if
the managing underwriter or underwriters advise Newpark in writing that, in its
or their opinion, the number of shares of Common Stock requested to be included
in such registration would have a material adverse effect on such offering
(including, without limitation, a material decrease in the price at which such
Common Stock can be sold), then the amount of the Shares included in the
offering shall be reduced, and the Shares and the other shares of Common Stock
to be included in the offering shall participate in such offering as follows:
(i) shares of Common Stock to be sold by Newpark
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shall have priority over all shares to be sold by stockholders of Newpark,
including Holders, and (ii) to the extent that shares of Common Stock in excess
of the Common Stock to be sold by Newpark can, in the good faith judgment of
such managing underwriter or underwriters, successfully be marketed in such
offering, (x) the Shares to be sold by Holders and shares of Common Stock to be
sold by any other stockholders of Newpark who have the right to registration of
their Common Stock under agreements in existence at the time Newpark gives
notice to Holders pursuant to this Paragraph 3 shall have priority over shares
of Common Stock to be sold by other stockholders of Newpark, subject to
reduction prorata in proportion to the number of shares of Common Stock proposed
to be included in such offering by each Holder and each other stockholder having
such registration rights, and (y) additional shares of Common Stock, if any,
shall be included in such registration in such proportions as may be agreed upon
by Newpark and such other stockholders.
4. Additional Provisions. Notwithstanding the provisions of Paragraphs 2
and 3 of this Agreement:
(a) The total number of Shares that Holders are entitled to have
registered by Newpark under the Securities Act pursuant to Paragraph 2(a) and
Paragraph 3(a) combined is fifty-one percent (51%) so that if fifty-one percent
(51%) of the Shares have been effectively registered under the Securities Act
pursuant to Paragraph 2(a), Holders will not be entitled to have Shares
registered pursuant to Paragraph 3(a), and vice versa. If the aggregate number
of Shares that Holders propose to have registered exceeds fifty-one percent
(51%) of the Shares, the number of Holders' shares eligible to be registered
shall be allocated prorata among Holders in proportion to the number of Shares
owned by each or as they may otherwise agree among themselves. If the aggregate
number of Shares that Holders propose to have registered in any registration
statement exceeds fifty-one percent (51%) of the Shares after the allocation
called for by the immediately preceding sentence, the number of Holders' Shares
eligible to be included in such registration statement shall be allocated
prorata among requesting Holders in proportion to the number of Shares proposed
by each of them for inclusion in such registration statement or as they may
otherwise agree among themselves.
(b) Newpark shall not be required to effect or cause the registration
of Shares held by any Holder pursuant to Paragraph 2 or 3 if, within 25 days
after its receipt of a request to register such Shares, Newpark delivers to such
Holder an opinion of counsel in form and substance satisfactory to counsel to
such Holder, that the entire number of Shares proposed to be sold by such Holder
may be sold, in the manner proposed by such Holder, without registration under
the Securities Act, whether pursuant to Rule 144 or otherwise, within a period
ending not more than ninety (90) days after the date of such opinion.
5. Registration Procedures.
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5.1 Newpark Obligations. If and whenever Newpark is required to
effect the registration of any Shares under the Securities Act as provided in
this Agreement, as expeditiously as possible:
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(a) Newpark will prepare and file with the SEC a registration
statement with respect to such Shares and use its best efforts to cause such
registration statement to become effective as soon thereafter as possible,
provided, that, before filing such registration statement or prospectus or any
amendments or supplements thereto: Newpark will furnish to each Participating
Holder copies of all such documents proposed to be filed, which documents will
be subject to review by such Holders, and Newpark will not file any such
registration statement or prospectus or any amendment or supplement thereto to
which any Participating Holder shall reasonably object; Newpark may assume, for
the purpose of the foregoing proviso, that a Holder has no objection if Newpark
has not received notice from such Holder within five calendar days after
delivery of such documents to Holder or, with respect to any version of or
amendment or supplement to any such registration statement after the first draft
furnished to such Holder, such shorter period as Newpark may reasonably request
when it furnishes such documents to such Holder, if a longer delay would result
in prejudice to the proposed offering. Newpark will promptly notify the
Participating Holders and confirm such advice in writing, (i) when such
registration statement becomes effective, (ii) when any post-effective amendment
to such registration statement becomes effective, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that purpose, (iv) of the
issuance by any state securities commission or other regulatory authority of any
order suspending the qualification or the exemption from qualification of any of
the Shares under state securities or blue sky laws or the initiation of any
proceedings for that purpose, and (v) of any request by the SEC for any
amendment or supplement to such registration statement or any prospectus
relating thereto or for additional information. Newpark will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Newpark will prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for at least six (6) months (or for
such shorter period in which the Participating Holders have sold all of the
Shares included in such registration statement) and to comply with the
provisions of the Securities Act with respect to the disposition of the Shares
covered by such registration statement during such period in accordance with the
intended methods of disposition by Participating Holders set forth in such
registration statement, as so amended, or such prospectus, as so supplemented.
(c) Newpark will furnish to each Participating Holder one signed copy
of such registration statement as originally filed and each amendment thereto
(without exhibits unless otherwise requested by such Participating Holder) and
such number of copies of such registration statement and of each such amendment
and supplement thereto, such number of copies of the prospectus (as amended or
supplemented) included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as Participating
Holders may reasonably request in order to facilitate the disposition of the
Shares by all Participating Holders.
(d) Newpark will use its best efforts to register or qualify such
Shares covered by such registration statement under such securities or blue sky
laws of any State of the United
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States as the managing underwriter, if any, or Participating Holders who have
Shares included in such registration statement shall reasonably request, and do
any and all other acts and things which may be reasonably necessary or advisable
to enable each Participating Holder and each underwriter, if any, to consummate
the disposition in such jurisdictions of the Shares to be sold by such
Participating Holder, except that Newpark shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this Paragraph 5.1(d), it would
not be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction.
(e) Newpark will promptly notify each Participating Holder at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act during the period mentioned in Paragraph 5.1(b) and Newpark
becomes aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits 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 existing at
the time it is to be delivered to a purchaser; and promptly prepare and furnish
to each Participating Holder a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Shares, such prospectus shall 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. If a registration statement is not
effective for the full period called for by Paragraph 5.1(b) for the reasons
described above in this Paragraph, then Newpark's obligation to keep such
registration statement effective shall be extended for a period of time equal to
the period of time during which prospectuses were not available so that the
actual period of effectiveness for such registration statement shall equal that
called for in Paragraph 5.1(b).
(f) During the period when the prospectus is required to be delivered
under the Securities Act, Newpark will promptly file all documents required to
be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and furnish a copy thereof to each Participating Holder promptly
after such document is so filed.
(g) Newpark will otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and, if requested by Participating
Holders having Shares included in such registration statement, will obtain an
opinion letter from Newpark's counsel addressed to all Participating Holders in
customary form covering such matters as may reasonably be requested.
(h) Newpark will make available for inspection by Participating
Holders having Shares included in a registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, in each case upon receipt of an appropriate
confidentiality agreement, all financial and other records, corporate documents
and properties of Newpark and its subsidiaries, and cause all of Newpark's
officers, directors and employees to supply all information, as may be
reasonably requested by such Participating
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Holders or any such underwriter, attorney, accountant or agent in connection
with such registration statement.
5.2 Participating Holder Obligations.
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(a) Each Participating Holder shall furnish Newpark in writing such
information and documents (or true copies of documents) regarding such Holder
and the distribution of his or her Shares as Newpark may reasonably request,
including questionnaires, powers of attorney, indemnities, standstill
agreements, underwriting agreements and other documents required under the terms
of such underwriting agreements.
(b) Each Participating Holder agrees that, upon receipt of any notice
from Newpark of the happening of any event of the kind described in Paragraph
5.1(e), such Holder will forthwith discontinue disposition of Shares pursuant to
the registration statement covering such Shares until such Holder's receipt of
copies of the supplemented or amended prospectus contemplated by Paragraph
5.1(e), and, if so directed by Newpark, such Holder will deliver to Newpark (at
Newpark's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Shares current at the time
of receipt of such notice. In the event Newpark shall give any such notice, the
period mentioned in Paragraph 5.1(b) shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Paragraph 5.1(e) to and including the date when all Participating
Holders shall have received the copies of the supplemented or amended prospectus
contemplated by Paragraph 5.1(e).
5.3 Expenses. Newpark will pay all Registration Expenses in
connection with each registration of Shares pursuant to Paragraphs 2 and 3;
provided, however, that (x) all underwriting discounts and commissions
attributable to the Shares shall be borne by Participating Holders in proportion
to the number of Shares sold by each of them, and (y) any other fees or expenses
incurred by any of the parties, including fees and expenses of attorneys and
accountants, other than those fees described in clause (ii) of the definition of
Registration Expenses, shall be borne by the party that incurred them.
6. Indemnification.
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6.1 Indemnification by Newpark. In the event of any registration of
any of the Shares under the Securities Act pursuant to this Agreement, Newpark
will, and it hereby does, indemnify and hold harmless each Participating Holder,
each Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls any such underwriter or
Participating Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the agents, employees, officers and
directors of Participating Holders or such underwriter and each such controlling
person (each a "Holder Party" and collectively as the "Holder Parties"), against
any and all losses, claims, damages or liabilities, joint or several, and
expenses (including any amounts paid in any settlement effected with Newpark's
written consent) to which any Participating Holder, any such underwriter or
controlling person may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof)
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arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Securities Act, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement
thereto, or (ii) 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, and Newpark will reimburse Holder Parties for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding, provided, that
Newpark shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon any breach by the indemnified person of its
obligations under this Agreement, including, without limitation, those contained
in Paragraph 5.2 or any untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement or amendment or
supplement thereto or in any such preliminary, final or summary prospectus or
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to Newpark by or on behalf of such
Participating Holder, any such underwriter or controlling Person specifically
for use in the preparation thereof; and provided, further, that Newpark will not
be liable to any Person who participates as an underwriter in the offering or
sale of Shares, or to any other Person who controls such underwriter within the
meaning of the Securities Act and the Exchange Act, under the indemnity
agreement in this Paragraph 6.1 with respect to any preliminary prospectus or
the final prospectus, or the final prospectus as amended or supplemented, as the
case may be, to the extent that any such loss, claim, damage or liability of
such underwriter or controlling Person results from the fact that such
underwriter sold Shares to a person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the final prospectus
(including any documents incorporated by reference therein) or of the final
prospectus as then amended or supplemented (including any documents incorporated
by reference therein), whichever is most recent, if Newpark has previously
furnished copies thereof to such underwriter and such final prospectus, as then
amended or supplemented, has corrected any such misstatement or omission, and if
Newpark shall sustain the burden of proving that the Holder Party sold Shares to
the person alleging such loss, claim, damage or liability without sending or
giving, at or prior to the written confirmation of such sale, a copy of the
amended or supplemented registration statement or prospectus if Newpark had
previously furnished copies thereof to such Holder Party. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Holder Party and shall survive the transfer of such securities by
each such Person.
6.2 Indemnification by Participating Holders. In the event of any
registration of any securities of Newpark under the Securities Act pursuant to
this Agreement, each Participating Holder, severally and not jointly, will, and
each Participating Holder hereby does, indemnify and hold harmless Newpark, each
director of Newpark, each officer of Newpark who shall sign the registration
statement and its controlling Persons, if any, and all other prospective sellers
and their respective directors, officers and controlling Persons against any and
all losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with the Participating
Holder's written consent) to which such Persons may become subject under the
Securities Act, common law or otherwise, to the extent that such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon any statement or alleged statement in or omission or
alleged omission from such
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registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
information furnished in writing to Newpark by or on behalf of such
Participating Holder for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, and such
Participating Holder will reimburse Newpark and such other indemnified persons
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of Newpark or any of the other
prospective sellers or any of their respective directors, officers or
controlling Persons and shall survive the transfer of such securities by the
Participating Holder or such seller.
6.3 Notices of Claims, etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Paragraph 6 such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Paragraph 6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
6.4 Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Paragraph 6 (with appropriate
modifications) shall be given by Newpark to each Participating Holder and each
underwriter of Shares, and by each Participating Holder to Newpark, with respect
to any required registration or other qualification of securities under any
federal or state law or regulation other than the Securities Act.
6.5 Contribution. If the indemnification provided for in Paragraphs
6.1, 6.2 or 6.4 is insufficient to hold harmless an indemnified party or is
unavailable to a party that would have been an indemnified party under any such
section in respect of any and all losses, claims, damages or liabilities, joint
or several (or actions or proceedings in respect thereof), referred to therein,
then each indemnified party and each party that would have been an indemnifying
party thereunder shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the
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relative fault of the indemnifying party, on the one hand, and such indemnified
party, on the other, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, joint or several (or
actions or proceedings in respect thereof). The relative fault 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 relates to information supplied by the indemnifying party
or such indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Newpark and Holders agree that it would not be just and equitable if
contribution pursuant to this Paragraph 6.5 were determined by prorata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Paragraph 6.5. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Paragraph 6.5 shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim (which shall be limited as
provided in Paragraph 6.3 hereof if the indemnifying party has assumed the
defense of any such action in accordance with the provisions thereof). 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.
7. Rule 144. Newpark covenants that it will duly and timely file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder to the extent
required from time to time to enable Holders to sell the Shares without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144. None of such reports will contain any 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, in the light of the circumstances
under which they are made, not misleading. Upon the request of any Holder,
Newpark will deliver to such Holder a written statement as to whether it has
complied with such requirements.
8. Miscellaneous.
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8.1 Transfer of Rights Hereunder. The rights granted to the Holders
under this Agreement may be transferred to any transferee of the Shares other
than a transferee of Shares that have been registered under the Securities Act,
and, from and after any such transfer, the provisions of this Agreement
applicable to Holders shall be applicable to such transferees. The foregoing
notwithstanding, no transfer of the Shares may be made without registration
under the Securities Act unless and until the transferor delivers to Newpark an
opinion of counsel reasonably satisfactory to Newpark to the effect that such
transfer would not violate the registration provisions of the Securities Act and
any applicable state law. In connection with the transfer of such Shares,
Newpark may require each certificate representing Shares transferred to bear an
appropriate restrictive legend. Such restrictive legend may be removed when (i)
a registration statement with respect to the sale of the Shares represented
thereby shall have become effective under the Securities Act, (ii) such Shares
shall have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, or (iii) such Shares shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by Newpark and subsequent
disposition of such Shares
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shall not require registration or qualification of them under the Securities Act
or any applicable state law.
8.2 Notices. Any and all notices, demands, requests or other
communications hereunder shall be in writing and shall be deemed duly given when
personally delivered to or transmitted by overnight express delivery or by
facsimile to and received by the party to whom such notice is intended, or in
lieu of such personal delivery or overnight express delivery or facsimile
transmission, 48 hours after deposit in the United States mail, first-class,
certified or registered, postage prepaid, return receipt requested, addressed to
the applicable party at the address provided below. The parties may change
their respective addresses for the purpose of this Paragraph 8.2 by giving
notice of such change to the other party in the manner which is provided in this
Paragraph 8.2.
Holders: At their respective addresses and facsimile
numbers, if any, set forth in Exhibit A
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Newpark: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
8.2 Severability. The provisions of this Agreement are severable,
and, if any one or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provisions, to the extent enforceable, shall nevertheless be
binding and enforceable upon the parties hereto.
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-11-
8.4 Headings. The headings of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
8.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
8.6 Entire Agreement. All other prior or contemporary
representations, warranties, covenants or agreements, if any, between the
parties hereto, or their representatives, with respect to the subject matter
hereof are superseded by and merged into this Agreement. This Agreement shall
constitute the entire understanding between the parties with respect hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth on the first page hereof.
NEWPARK: HOLDERS:
Newpark Resources, Inc. FMI Wholesale Drilling Fluids, Inc.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
General Supply Co.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
American Polymer, Inc.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT A
LIST OF HOLDERS
FMI Wholesale Drilling Fluids, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
General Supply Co.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
American Polymer, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-13-
