EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of July 1, 1998, by and between R&B Falcon Corporation, a
Delaware corporation ("RBF") and Xxxxxxx Stage, T. Xxxxxx Xxxxx, Vial X.
XxXxxxx and Xx. Xxxxxxx X. Xxxxxxxx, individuals of the full age of
majority domiciled in the State of Louisiana ("Stockholders").
W I T N E S S E T H
WHEREAS, R&B Falcon Drilling (U.S.), Inc., a wholly-owned subsidiary
of RBF, and Stockholders have entered into a Stock Acquisition Agreement
and Plan of Reorganization dated July 1, 1998 (the "Acquisition
Agreement") providing for the transfer and exchange by Stockholders of
all of the outstanding common stock of Knots Marine Service, Inc.
("Knots"), a Louisiana corporation, for the sum of $1,250,000.00 (subject
to adjustment as provided in the Acquisition Agreement) payable in shares
of the common stock of RBF.
WHEREAS, to induce Stockholders to enter into the Acquisition
Agreement and as a condition precedent to the Closing thereunder (as such
term is defined therein), RBF has agreed to grant certain registration
rights, from time to time, with respect to the Registrable Securities (as
hereinafter defined) in accordance with the terms and conditions set
forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Acquisition Agreement" shall have the meaning set forth in the
initial recital of this Agreement.
"Agreement" shall have the meaning set forth in the initial
paragraph hereof, and as the same may, be amended or modified from time
to time in accordance with the provisions hereof.
"Closing Date" shall have the meaning set forth in the Acquisition
Agreement.
"Commission" shall mean the Securities and Exchange Commission (or
any successor body thereto).
"Common Stock" shall mean the common stock, par value $.01 per
share, of RBF which is not registered under the Securities Act, in the
amount specified in the Acquisition Agreement.
"Demand Registration" shall have the meaning set forth in Section
3(a), hereto.
"Holder" shall have the meaning set forth in Section 4(a).
"Holder's Counsel" shall have the meaning set forth in Section
6(a)(i).
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Registrable Securities" shall mean the Common Stock of RBF
constituting Registrable Securities as provided in Section 2 of this
Agreement.
"Registration Expenses" shall mean all expenses incident to RBF's
performance or compliance with the registration rights granted hereunder,
including, without limitation, all registration, filing, listing and NASD
fees, all fees and expenses of complying with securities or blue sky
laws, all word processing, duplicating and printing expenses, messenger
and delivery expenses, the fees and expenses of RBF?s independent public
accountants, including fees and expenses associated with any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, and any fees and disbursements of
underwriters customarily paid by issuers and sellers of securities;
provided, however, that "Registration Expenses" shall not include fees
and expenses of counsel to any Holder of Registrable Securities nor shall
it include underwriting discounts, commissions and transfer taxes, if
any.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. Securities Subject to this Agreement; Representations and
Warranties
(a) The securities entitled to the benefit of this Agreement are
the shares of RBF Common Stock issued to Stockholders pursuant to the
Acquisition Agreement in exchange for the outstanding shares of Knots.
The term "Registrable Securities" shall include the foregoing securities
and shall also include any securities issued to Stockholders as a
dividend or distribution or pursuant to a recapitalization,
reorganization, consolidation or merger on account of Registrable
Securities, and includes any shares of Common Stock received by
Stockholders by way of subdivision of the outstanding shares of Common
Stock into a greater number of shares (by reclassification, stock split
or otherwise). Certificates representing Registrable Securities shall
contain the following legend on the face thereof:
The securities represented by this certificate have
not been registered under the Securities Act of 1933,
as amended (the "Act"), and may not be offered or
sold except pursuant to (i) an effective registration
statement under the Act, (ii) to the extent
applicable, Rule 144 under the Act (or any similar
rule under the Act relating to the disposition of
securities), or (iii) an opinion of counsel, if such
opinion shall be reasonably satisfactory to counsel
of the Company, that an exemption from registration
under the Act is available.
The foregoing legend shall remain on the face of such certificates until
the Common Stock represented thereby has been registered with the
Commission or until counsel to RBF has determined that such legend may be
removed in accordance with applicable provisions of the Securities Act,
and the rules and regulations promulgated thereunder. The Registrable
Securities may not be sold by Stockholders except in accordance with the
terms and conditions referenced in the foregoing legend.
(b) A Registrable Security shall cease to be a Registrable Security
when: (i) such security has been effectively registered under the
Securities Act and has been disposed of pursuant to a registration
statement (which shall not include the sale of Registrable Securities to
Stockholders pursuant to the Acquisition Agreement); (ii) such security
is sold pursuant to Rule 144 under the Securities Act (or similar
provision); (iii) such security has been otherwise transferred and (A)
RBF delivers a new certificate for such security which does not bear a
registration legend and (B) Holder's counsel is of the reasonable opinion
that subsequent disposition of such security into the public market does
not require registration under the Securities Act; or (iv) such security
has ceased to be outstanding.
(c) The RBF represents and warrants, as follows:
(i) RBF is a corporation organized, validly existing and in
good standing under the laws of Delaware.
(ii) RBF has duly authorized and approved by all requisite
corporate action this Agreement, and has all requisite corporate power
and authority to enter into, execute and deliver this Agreement and
perform its obligations hereunder.
(iii) This Agreement has been duly executed and delivered
by RBF and is its valid and binding obligation enforceable against it in
accordance with its terms except to the extent that its enforceability
may be subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the enforcement of creditors'
rights generally and general equitable principles.
(iv) The Registrable Securities have been duly and validity
authorized and issued, are fully paid and non-assessable and will not
subject the Holder to any liability solely by reason of being the Holder
thereof. The Registrable Securities are free and clear of all liens,
encumbrances, and claims of every kind. RBF has full legal right, power
and authority to sell, assign, transfer, convey and deliver the
Registrable Securities so owned, and RBF can and will deliver good and
marketable title to such Registrable Securities.
(v) RBF is not subject to any charter, by-law, mortgage, lien,
lease, agreement, instrument, order, law, rule, regulation, judgment or
decree, or any other restriction of any kind or character, which would
prevent consummation of the transactions contemplated by this Agreement.
(d) Stockholders shall be provided with an opinion of counsel dated
the date hereof, in form and substance reasonably satisfactory to
Stockholders, covering the matters set forth in Section 2(c) hereof, and
such other matters as Stockholders may reasonably request.
3. Demand Registration.
(a) At any time on and after July 1, 1998, any Holder or Holders
of 50% or more of Registrable Securities may make a written request
(specifying the intended method of disposition) that RBF effect the
registration of Registrable Securities under the Securities Act (such
registration upon such request, a ?Demand Registration?), provided that
such request shall relate to an amount of Registrable Securities at least
equal to 25 % of the total amount of Registrable Securities.
(b) Within ten days after receipt of a request for the Demand
Registration, RBF shall give written notice (the "Notice") of such
request to all other Holders and shall include in such registration
(except as otherwise provided herein) all Registrable Securities for
which RBF has received, within 15 days after receipt by the applicable
Holder of the Notice, a written request to be included therein. All
requests made under this Section 3(b) shall specify the aggregate number
of Registrable Securities to be registered.
(c) A registration shall not constitute a Demand Registration until
it has become effective. In any registration initiated as a Demand
Registration, RBF shall pay all Registration Expenses incurred in
connection therewith, whether or not such Demand Registration becomes
effective; provided that a Holder participating in such registration
shall pay all Registration Expenses if such Demand Registration fails to
become effective solely as a result of an act or omission by such Holder.
(d) RBF shall only be obligated to effect one Demand Registration.
(e) The Holder of a majority of the Registrable Securities shall
have the right to decide whether or not the offering of the securities
will be an underwritten offering and shall have the right to choose such
underwriter or underwriters.
(f) If RBF registers Registrable Securities pursuant to Section 4,
and in connection therewith offers to include all Registrable Securities
in such registration statement and fulfills in all material respects the
substantive requirements of a Demand Registration with respect to all
Registrable Securities that the Holders request to be included in the
Piggyback Registration, then this Section 3 shall be of no further force
and effect.
4. Piggyback Registration.
(a) If, at any time, RBF proposes to file a registration statement
under the Securities Act with respect to an offering by RBF for its own
account or for the account of any security holders of RBF of any class of
debt or equity security of RBF (other than a registration statement on
Form S-4 or S-8 or any successor or similar forms thereto), which is
anticipated to be or becomes effective on or after July 31, 1998, RBF
shall give written notice of such proposed filing (the "Offering Notice")
to Stockholders and to all holders of Registrable Securities to whom the
transfer of Registrable Securities has, from time to time, been
registered on the books and records of RBF (Stockholders and any such
transferee each referred to herein as a "Holder" and collectively as
"Holders"), such securities so transferred constituting Registrable
Securities immediately following such transfer, at least 30 days before
the date of anticipated filing with the Commission. Such Offering Notice
shall offer to any Holder, the opportunity, but in no event shall such
offer constitute a mandatory obligation, to register such number of
Registrable Securities as any such Holder may request in writing. For
such request for registration (each a "Piggyback Registration") to be
effective it must be received by RBF within 15 days after receipt by such
Holder of the Offering Notice. If any Holder declines to participate in
such Piggyback Registration, the provisions of Section 3 shall be of no
further force and effect, provided that all of the Registrable Securities
owned by such Holder could have been registered in such Piggyback
Registration.
(b) In connection with any Piggyback Registration, RBF shall use
best efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit any Holder of the Registrable
Securities who requested to be included in the registration for such
offering to include such Registrable Securities in such offering on the
same terms and conditions as any similar securities of RBF or, if such
offering is for the account of other security holders, any similar
securities of such security holders included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of a proposed
underwritten offering advise RBF in writing that in its or their opinion
the number of Registrable Securities proposed to be sold in such offering
exceeds the number of Registrable Securities that can be sold in such
offering without adversely affecting the market for the Common Stock, RBF
will include in such registration the number of Registrable Securities
that in the opinion of such managing underwriter or underwriters can be
sold without adversely affecting the market for the Common Stock. In such
event, RBF shall reduce the number of Registrable Securities to be
offered for the accounts of any Holder pro rata on the basis of the
relative number of any Registrable Securities requested by each Holder to
be included in such registration to the extent necessary to reduce the
total number of Registrable Securities to be included in such offering to
the number recommended by such managing underwriter or underwriters;
provided however, that any such reduction in the number of Registrable
Securities shall not constitute a Piggyback Registration. RBF shall pay
all Registration Expenses incurred in connection with a Piggyback
Registration.
(c) The Holders of Registrable Securities shall be entitled to
participate in no more than one Piggyback Registration, provided RBF
allows the Holders to include in such Piggyback Registration all of the
Registrable Securities which the Holders desire to include therein.
5. Certain Matters Concerning Demand Registrations.
(a) Notwithstanding anything in the foregoing Sections 3(a) and
4(a), if RBF's Board of Directors reasonably determines that a Demand
Registration would substantially interfere with a material transaction
being considered by RBF, RBF may delay such Demand Registration for
thirty (30) days.
(b) RBF may, if permitted by law, effect any Demand Registration
by the filing of a registration statement on Form S-3 (or any successor
or similar short-form registration statement).
(c) A Demand Registration shall not be deemed to have been effected
unless it becomes effective with the Commission, provided that a
registration which does not become effective after RBF filed a
registration statement with respect thereto with the Commission solely by
reason of any participating Holder failing to proceed shall be deemed to
have been effected by RBF in satisfaction of the obligation of RBF to
register Registrable Securities pursuant to the Demand Registration,
unless RBF shall have been promptly reimbursed for all Registration
Expenses by the Person who demanded registration and failed to proceed.
If a Demand Registration has been initiated, the failure of any Holder to
proceed with such registration shall not constitute a revocation of the
request for registration nor relieve RBF of its obligation to effect such
Demand Registration as to Registrable Securities of any other Holder who
has elected to participate in such Demand Registration and who proceeds
therewith. Notwithstanding the foregoing, a registration statement will
not be deemed to have been effected if, after it becomes effective with
the Commission, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or any court proceeding for any reason other than a
misrepresentation or omission by the Holder initiating the demand.
6. Registration Procedures; Damages.
(a) If and whenever any Holder of Registrable Securities has
requested that any Registrable Securities be registered pursuant to
Section 3 or 4, RBF shall use its best efforts to effect the registration
of such Registrable Securities under the Securities Act and in accordance
with the intended method of disposition thereof as expeditiously as
practicable, and in connection with any such request RBF will, as
expeditiously as possible:
(i) in connection with a Demand Registration, prepare and
file with the Commission, as soon as practicable, but in any event not
later than sixty (60) days after receipt of a request to file a
registration statement with respect to Registrable Securities, a
registration statement on any form for which RBF then qualifies or which
counsel for RBF and the Holder's Counsel (as hereinafter defined) shall
deem appropriate and which form shall be available for the sale of such
Registrable Securities in accordance with the intended method of
distribution thereof and, if the offering is an underwritten offering,
shall be reasonably satisfactory to the managing underwriter or
underwriters, and use its best efforts to cause such registration
statement to become effective; provided, however, that before filing a
registration statement or prospectus or amendments or supplements
thereto, RBF shall (a) furnish to the counsel selected by the Holder
making the demand (the "Holder's Counsel"), or if no demand is made, the
holders, in the aggregate, of a majority of the Registrable Securities
covered by such registration statement, copies of all documents proposed
to be filed a reasonable period of time prior to the filing thereof,
which documents will be subject to the review and comment of such counsel
and each seller of Registrable Securities included in such registration
statement, and (b) notify each seller of Registrable Securities of any
stop order, injunction or other order or requirement issued or threatened
by the Commission or other governmental agency or any court injunction
and take all reasonable action required to prevent the entry of such stop
order, injunction or other order or requirement or to remove it if
entered;
(ii) in connection with a registration pursuant to Section 3 or
4, 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 less than sixty (60) days (or such shorter
period that will terminate when all Registrable Securities covered by
such registration statement have been sold, but not before the expiration
of the applicable period referred to in Section 4(3) of the Securities
Act and Rule 174 thereunder, if applicable), and comply with the
provisions of the Securities Act applicable to it 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 sellers thereof set forth in such registration statement;
(iii) furnish to each seller of Registrable Securities one
signed copy of the registration statement and each amendment thereto as
filed with the Commission, and such number of copies of such registration
statement, amendments and supplements thereto (in each case including all
exhibits thereto), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by them;
(iv) use all reasonable efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of
such jurisdictions as any seller or underwriter reasonably requests in
writing and do any and all other acts and things that may be reasonably
necessary or advisable to qualify for sale in such jurisdictions the
Registrable Securities owned by such seller; provided, however, that RBF
shall not be required (a) to qualify generally to do business in any
jurisdiction where it is not then so qualified, (b) to subject itself to
jurisdiction or qualification in any such jurisdiction, (c) to consent to
general service of process in any such jurisdiction, (d) to provide any
undertaking required by such other securities or "blue sky" laws or (e)
make any change in the charter or bylaws that the Board of Directors
determines in good faith to be contrary to the best interest of RBF and
its stockholders;
(v) use all reasonable efforts to cause the Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of RBF to enable the
sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(vi) notify each seller of such Registrable Securities and the
Holder's Counsel at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading and prepare and file with the Commission a
supplement or amendment to such prospectus after prompt review by the
Holder's Counsel so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(vii) enter into customary agreements in form and substance
reasonably satisfactory to RBF (including an underwriting agreement in
customary form for companies of similar size and credit rating, if the
offering is an underwritten offering) and take in good faith such other
actions as are reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities, including making
presentations to brokers, analysts and potential purchasers, in each case
as if RBF was the seller of the Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, the Holder's Counsel and any
attorney, accountant or other agent retained by any such seller or
underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of RBF
(collectively, the "Records") and provide reasonable access during normal
business hours to officers, directors, employees and agents to ask
questions, in each ease as shall be reasonably necessary to enable the
Inspectors to exercise their due diligence responsibility, and cause
RBF's officers, directors, employees and agents to supply all information
reasonably requested and to answer all questions reasonably asked by any
such Inspector in connection with such registration statement. Records
that RBF determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (a) the disclosure of such records is, in the
reasonable opinion of Holder's Counsel, necessary to avoid or correct a
misstatement or omission of a material fact in the registration
statement, provided that any such Holder has notified RBF of such
condition and has afforded RBF an opportunity to correct any such
misstatement or omission, or (b) the release of such records is required
(in the written opinion of counsel of such seller or underwriter, which
counsel shall be reasonably acceptable to RBF) pursuant to applicable
state or federal law. The seller of Registrable Securities agrees that it
will deliver such opinion to RBF a reasonable period before releasing
such information and, upon learning that disclosure of such records is
sought by a court or governmental agency, provide notice to RBF and, in
each case, allow RBF, at RBF's expenses, to undertake an appropriate
action to prevent disclosure of the records deemed confidential;
(ix) if such sale is pursuant to an underwritten offering, use
all reasonable efforts to obtain a "cold comfort" letter and updates
thereof from RBF's independent public accountants in customary form and
covering such matters of the type customarily covered by "cold comfort"
letters as the holders, in the aggregate, of a majority of the
Registrable Securities being sold and the managing underwriter or
underwriters reasonably request;
(x) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period of twelve (12) months, beginning
within three (3) months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions oi
Section 11(a) of the Securities Act;
(xi) use all reasonable efforts to cause all Registrable
Securities covered by the registration statement to be listed on each
securities exchange, if any, on which similar securities issued by RBF
are then listed, provided that the applicable listing requirements are
satisfied;
(xii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement; and
(xiii) cause counsel to RBF to provide customary legal
opinions reasonably requested by the Holders holding, in the aggregate,
of a majority of the Registrable Securities being sold.
RBF may request each seller of Registrable Securities as to which
any registration is being effected to furnish to RBF such information
regarding the distribution of such securities and other matters as may be
reasonably required to be included in the registration statement and each
seller of Registrable Securities shall have the opportunity to review and
approve the presentation of such material in the registration statement.
In addition, any Holder of Registrable Securities will have the right to
propose a plan of distribution section of the registration
statement/prospectus in the form attached hereto as Exhibit A. RBF shall
promptly notify the Holder?s Counsel of any request by the Commission for
any amendment or supplement of such registration statement or prospectus
or for additional information and shall promptly notify each seller of
Registrable Securities of any such request by the Commission if such
request pertains directly to the material set forth in the preceding
sentence. RBF shall promptly notify each seller of Registrable
Securities and the Holder's Counsel after RBF shall receive notice of the
time when such registration statement became effective or when any
amendment or supplement referred to in the preceding sentence is filed.
Each Holder of Registrable Securities agrees that, upon receipt of
any notice from RBF of the happening of any event of the kind described
in Paragraph (vi) of this Section 6(a), each such Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such
Person's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (vi) of this Section 6(a), and, if so directed
by RBF, such Person shall deliver to RBF (at RBF's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice. If RBF shall give any such notice, RBF shall
extend the period during which such registration statement shall be
maintained effective pursuant to this Agreement (including the period
referred to in paragraph (ii) of this Section 6(a)) by the number of days
during the period from and including the date of the giving of such
notice pursuant to paragraph (vi) of this Section 6(a) to and including
the date when each seller of Registrable Securities covered by such
registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph (vi) of this Section
6(a).
(b) RBF may require each Holder, at RBF's expense, to furnish RBF
with such information and undertakings as it may reasonably request
regarding each such Holder and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(c) Each Holder shall promptly notify RBF when such Holder has
disposed of all Registrable Securities covered by any registration
statement which includes such Registrable Securities.
7. Underwritten Offerings.
(a) If a Demand Registration is an underwritten offering, if
requested by the underwriters, RBF will enter into an underwriting
agreement with the managing underwriter or underwriters for such offering
(which managing underwriter or Underwriters shall he an investment
banking firm or firms of national reputation), such agreement to be in
form and substance reasonably satisfactory to RBF and to Holder's Counsel
and to contain such representations and warranties by RBF and such other
terms as are customarily contained in agreements of such type, including,
without limitation, indemnities to the effect and to the extent provided
in Section 8. The sellers of Registrable Securities in such offering
shall be party to such underwriting agreement and may require that any or
all of the representations and warranties by, and the other agreements on
the part of, RBF to and for the benefit of such underwriters shall also
be made to and for the benefit of such sellers and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligation of such
sellers. No Holder shall be required to make any representations or
warranties to or agreements with RBF or the underwriters other that
representations, warranties or agreements regarding such Person, its
ownership of Registrable Securities and its intended method of
distribution and any other representation required by applicable law.
(b) Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities, if so required by the managing underwriter,
not to effect any public sale or distribution of Registrable Securities
or sales of such Registrable Securities pursuant to Rule 144 or Rule 144A
under the Securities Act, during the fourteen (14) days prior to and the
ninety (90) days after any firm commitment for an underwritten
registration pursuant to Section 3 or 4 has become effective (except as
part of such registration) or, if the managing underwriter advises RBF
that, in its opinion, no such public sale or distribution should be
effected for a period of 120 days after such underwritten registration in
order to complete the sale and distribution of securities included by
such registration and RBF gives written notice to each Holder of such
advice. Each such Person shall not effect any public sale or distribution
of Registrable Securities or sales of such Registrable Securities
pursuant to Rule 144 or Rule 144A under the Securities Act during such
120-day period after such underwritten registration, except as part of
such underwritten registration, whether or not such Person participates
in such registration.
8. Indemnification.
(a) RBF will, and hereby does, agree to indemnify and hold
harmless, to the full extent permitted by law, Stockholders and each
other Holder, against any losses, claims, damages or liabilities (or
actions in respect thereof), joint or several, to which Stockholders or
any other Holder may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced of threatened, in respect
thereof) 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 prospectus, final prospectus or
summary prospectus contained therein or any document incorporated therein
by reference, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make such statements therein (in the case of a
prospectus, in light of the circumstance under which they were made) not
misleading, or (ii) any violation by RBF or any of its officers,
directors, employees, representatives or agents of any rule or regulation
under applicable securities laws or other laws applicable to RBF, in each
case, RBF will reimburse Stockholders and any other Holder for any legal
and any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that RBF 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
an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in conformity with information furnished in writing
to RBF by Stockholders or any other such Holder.
(b) Stockholders and each other Holder will, and hereby do, agree
to provide RBF with an undertaking to indemnify and hold harmless,
severally and not jointly, to the full extent permitted by law, RBF, its
directors, officers and each other Person, if any, who controls RBF
(within the meaning of the Securities Act), against any losses, claims,
damages or liabilities, joint or several, to which RBF or any such
director, officer or controlling Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened,
in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact or any omission or
alleged omission of a material fact required to be stated in any
registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained herein or any document incorporated therein
by reference, or any amendment or supplement hereto, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, only to the extent, such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity
with information furnished in writing to RBF solely by Stockholders or
any other such Holder.
(c) Promptly after receipt by an indemnified party of notice of any
threatened action or proceeding or the commencement of any action or
proceeding involving a claim referred to in the preceding subsections of
this Section 8, 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 threat or commencement of such action or proceeding,
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 subsections of this Section 8, 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 shall 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 to so assume the defense thereof, the indemnifying
party shall not be liable to such indemnitee for any legal or other
expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall consent to entry of any judgment or enter into
any settlement without the consent of the indemnified party 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 of such claim or litigation.
(d) Indemnification similar to that specified in the preceding
subsections of this Section 8 (with appropriate modifications) shall be
given by RBF and the sellers of Registrable Securities with respect to
any required registration or other qualification of securities under any
Federal or state law or regulation of any governmental authority, other
than the Securities Act.
(e) If the indemnification provided for in this Section 8 from the
indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred
to herein, then the indemnifying party, to the extent such
indemnification is unavailable, 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 or
expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified parties in connection
with the actions that resulted in such losses, claims, damages,
liabilities or expenses. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the
parties' relative extent of knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable
by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(e) were determined by pro rata
allocation or by any other method of allocation that does no take account
of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 10(f) of the Securities Act) shall be entitled to
contribution from any Person.
If indemnification is available under this Section 8, the
indemnifying parties shall indemnify each indemnified party to the full
extent provided in Sections 8(a) and 8(b) without regard to the relative
fault of said indemnifying parties or indemnified party or any other
equitable consideration provided for in this Section 8.
(f) The indemnification or contribution required by this Section 8
shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
9. Covenants Relating to Rule 144. RBF covenants that it shall
use its best efforts to file the reports required to be filed by it under
the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder for so long as RBF becomes
obligated to file such reports (or, if RBF ceases to be required to file
such reports, it shall, upon the request of any Holder, make publicly
available other information so that Rule 144 shall be available to any
Holder), and it shall, if feasible, take such further action as any
Holder may reasonably request, all to the extent required from time to
time to enable such Person to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 or Rule 144A under the Securities
Act, as such Rules may be amended from time to time, or (b) any similar
rules or regulations hereafter adopted by the Commission. Upon the
request of any Holder, RBF shall deliver to such Person a written
statement as to whether it has complied with such requirement.
10. Miscellaneous.
(a) Specific Performance. The parties hereto acknowledge that
there may be no adequate remedy at law if any party fails to perform any
of its obligations hereunder and that each party may be irreparably
harmed by any such failure, and accordingly agree that each party in
addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with
the terms and condition of this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand, if delivered personally by
courier, or by telecopy or ten (10) days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt
requested) as follows: if to RBF, to it at 000 Xxxxxxxxxxxx, Xxxxxxx,
Xxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, and if to Stockholders to them
at , Attention:
, and if to a Holder, to its address as indicated on RBF's register or
stock ledger or other books or records, or to such other address as any
such Holder may have furnished to RBF in writing in accordance herewith,
except the notices of change of address shall be effective only upon
receipt.
(c) Governing Law and Arbitration. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK. Any dispute arising out of or in relation to this Agreement or the
activities conducted hereunder (whether tort or otherwise) shall be
finally and exclusively resolved by arbitration in New York, New York, in
accordance with the Rules of Arbitration of the American Arbitration
Association by three arbitrators. The arbitration shall be conducted in
the English language, and each arbitrator shall have English as his or
her first (mother-tongue) language. Disputes involving sums less than US
$25,000.00 shall be resolved on the basis of document submission alone by
one arbitrator. All decisions of the arbitrator(s) shall be in writing,
and the arbitrator(s) shall provide written reasons for their decisions.
The arbitration shall be final and binding on the parties. The prevailing
party shall be entitled to recover from the losing party reasonable
expenses, attorneys' fees and costs.
(d) Headings. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience only, and do
not constitute a part of this Agreement and shall not affect in any way
the meaning or interpretation of this Agreement.
(e) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a
part hereof and contain the entire understanding of the parties with
respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its
subject matter. This Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a written
instrument duly executed by RBF, Stockholders and any Holder.
Stockholders and any other Holder shall be bound by an amendment or
waiver authorized by this Section 10(e), whether or not any Registrable
Securities held by such Person shall have been marked to indicate such
consent.
(f) Assignability of Registration Rights. The rights and benefits
accruing to, and the obligations of, any Holder hereunder shall be freely
assignable in connection with and shall attach to any transfer of
Registrable Securities to any Person provided that any of such rights,
benefits and obligation, shall be effective only to the extent set forth
herein and that, except as set forth in Section 4, no individual Holder
of a Registrable Security shall have any rights, benefits or obligations
hereunder unless such individual holder constitutes a Holder; and
provided further that any Holder effecting a transfer of the rights set
forth in this Agreement, or who has knowledge that any such transfer
would cause any other Person or group of Persons to have the rights of a
Holder, shall provide RBF with notice of such transfer and the identity
of such Person or Persons.
(g) Counterparts. This Agreement may be entered into in any number
of counterparts, and by the parties to it on separate counterparts, each
of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions hereof shall not be in any way impaired,
it being intended that all of the rights of Stockholders or any other
Holder shall be enforceable to the fullest extent permitted by law.
(i) Written Consent. RBF, Stockholders and each Holder agree that
whenever in this Agreement the written consent of any party is required,
such written consent shall not be unreasonably withheld or delayed.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
R&B FALCON CORPORATION
By:______________________
Name:
Title:
STOCKHOLDERS:
_________________________
XXXXXXX STAGE
_________________________
T. XXXXXX XXXXX
_________________________
VIAL X. XxXXXXX
_________________________
XX. XXXXXXX X. XXXXXXXX
EXHIBIT A
PLAN OF DISTRIBUTION
The Common Stock may be sold from time to time by the selling
stockholders, or by pledgees, donees, transferees or other successors in
interest. Such sales may be made on one or more exchanges or in the over-
the-counter market, or otherwise at prices and at terms then prevailing
or at prices related to the then current market price, or in negotiated
transactions. The shares may be sold by one or more of the following:
(a) a block trade in which the broker or dealer so engaged will attempt
to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a
broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) an exchange distribution in
accordance with the rules of such exchange; and (d) ordinary brokerage
transactions and transactions in which the broker solicits purchasers.
In addition, any securities covered by this Prospectus which qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant
to this Prospectus. From time to time the selling stockholders may engage
in short sales, short sales versus the box, puts and calls and other
transactions in securities of the issuer or derivatives thereof, and may
sell and deliver the shares in connection therewith.
In effecting sales, brokers or dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from selling
stockholders in amounts to be negotiated immediately prior to the sale.
The selling stockholders and agents who execute orders on their behalf
may be deemed to be underwriters as that term is defined in Section 2(11)
of the Act and a portion of any proceeds of sales and discounts,
commissions or other compensation may be deemed to be underwriting
compensation for purposes of the Act.
