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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 30, 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 30, 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.
"Chesapeake" means Chesapeake Energy Corporation, an Oklahoma
corporation.
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"Commission" means the Securities and Exchange Commission.
"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.
"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.
"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 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 ▇▇▇▇ ▇▇▇▇▇▇.
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"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 7
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 112,000 shares of Common Stock at an exercise price of
$7.50 per share, issued by the Company to Energy Spectrum as of April
30, 1997.
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"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. ▇▇▇▇ and Wil-Cas Investments.
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 Chesapeake, 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 Chesapeake, 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 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
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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 fifth 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.
(iv) Each of Chesapeake, 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,
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that the Company shall be required to effect not more than one
Demand Registration for each of Chesapeake, Energy Spectrum, the
AnSon Group, the ▇▇▇▇▇▇ Group and the ▇▇▇▇ Group 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.
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
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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 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
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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 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
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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;
(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;
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(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 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
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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;
(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;
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(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, fees and disbursements of one counsel for the Selling Holders,
selected by the Selling Holder initiating a registration under Section 3 hereof
and selected by the holders of a majority of the Registrable Shares included in
a registration under Section 4 hereof, 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 borne by the Company. In
addition, 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.
Registration Expenses shall not include (a) the fees and expenses of more than
one counsel for the Selling Holders, or (b) any underwriting discounts,
commissions or similar charges attributable to the sale of Registrable Shares
included in such registration.
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
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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 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
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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 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 net 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
rela tive 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
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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 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
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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.
(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
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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 expressed or not.
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:
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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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
THE STOCKHOLDERS:
ANSON PARTNERS LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
-----------------------------
Title: General Partner
----------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
ENERGY SPECTRUM PARTNERS LP
By: Energy Spectrum Capital LP, its General
Partner
By: Energy Spectrum LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: President
----------------------------
21
▇▇▇▇ ▇▇▇▇▇▇ ENERGY EQUIPMENT
RESOURCE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: President
----------------------------
GRUPO DE HERCULES, LTD.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Rig Investments Group, Inc.
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: President
----------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇ PARTNERSHIP, LTD.
By: ▇▇▇▇▇▇-▇▇▇▇▇▇ Rig Investments Group, Inc.
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: President
----------------------------
RR & T, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title:
----------------------------
22
▇.▇. ▇▇▇▇▇▇ DRILLING, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title:
----------------------------
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title:
----------------------------
CHESAPEAKE ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Title:
----------------------------
▇▇▇▇ DRILLING COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
23
WIL-CAS INVESTMENTS, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
General Partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Executive Vice President, General Partner
-------------------------------------------
/s/ ▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ REVOCABLE INTER
VIVOS TRUST DATED APRIL 23, 1984
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: Trustee
----------------------------
EMPLOYEE OPTION HOLDERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
