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EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of December 29, 1997
(this "Agreement"), by and among CLIFFS DRILLING COMPANY, a Delaware
corporation (the "Company"), and WELL SERVICES (MARINE) LTD., a Trinidad and
Tobago, W.I. private limited company, XXXXXXX X. XXXXX of San Fernando,
Trinidad, W.I., and XXXXXXX X. XXXXXXXXX, of San Fernando, Trinidad, W.I.
(referred to individually as a "Stockholder" and collectively as the
"Stockholders").
W I T N E S S E T H:
WHEREAS, Cliffs Drilling Trinidad Offshore Limited, a Trinidad and
Tobago, W.I. private limited company and indirect wholly owned subsidiary of
the Company ("Purchaser") and the Stockholders are parties to the Asset
Purchase Agreement (as hereinafter defined), pursuant to which Purchaser will
acquire the Assets (as defined in the Asset Purchase Agreement), and in
consideration thereof, will issue to the Stockholders such number of shares of
the Common Stock (as hereinafter defined) of the Company which is equal to the
quotient obtained (and expressed in number of shares) by dividing $23,500,000
by the Five-Day Average for the five (5) days immediately preceding (but not
including) the Closing Date, LESS the Closing Adjustment (as defined in the
Asset Purchase Agreement), if any; and
WHEREAS, Purchaser has agreed to cause the Company to provide to the
Stockholders the limited registration rights set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms
have the meanings specified as follows:
(a) The term "Asset Purchase Agreement" means that certain Asset
Purchase Agreement dated as of December 29, 1997 by and among the Company and
the Stockholders.
(b) The term "Commission" means the Securities and Exchange
Commission.
(c) The term "Common Stock" means the common stock, par value
$0.01 per share, of the Company.
(d) The term "Company" has the meaning specified in the preamble
to this Agreement.
(e) The term "Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission issued under
such Act, as they each may, from time to time, be in effect.
(f) The term "Person" means an individual, partnership,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
(g) The term "Piggy-back Registration" shall have the meaning
given it in Section 3
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hereof.
(h) The term "Qualified Transferee" means any shareholder of a
Stockholder to whom the Registrable Securities and the rights hereunder have
been transferred in liquidation and/or dissolution of such Stockholder, if and
only if such transferee shall have executed and delivered to the Company, prior
to the transfer, a written agreement pursuant to which such transferee (i)
makes the representations set forth in Section 2.01(U) of the Asset Purchase
Agreement, and (ii) agrees to be bound by the restrictions set forth in Section
2.01(U) of the Asset Purchase Agreement and the obligations imposed on the
Stockholders by this Agreement.
(i) The terms "register," "registered" and "registration" refer to
a registration of securities effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act (as defined
below), and the declaration or ordering of effectiveness of such registration
statement or document.
(j) The term "Registrable Securities" means (i) the shares of
Common Stock received by the Stockholders pursuant to the Asset Purchase
Agreement, and (ii) any other shares of Common Stock issued as a dividend or
other distribution with respect to, or in exchange for or in replacement of,
such shares of Common Stock; provided, however, that such shares of Common
Stock shall cease to be Registrable Securities when (i) such shares have been
effectively registered under the Securities Act and disposed of in accordance
with a registration statement, (ii) such shares are sold pursuant to Rule 144
(or any similar provision then in force) under the Securities Act, or (iii)
such shares are otherwise transferred by a Stockholder to a Person other than a
Qualified Transferee.
(k) The term "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission issued under such Act,
as they each may, from time to time, be in effect.
(l) The term "Stockholders" means the persons defined as such in
the preamble to this Agreement to whom registration rights are hereby granted,
and any Qualified Transferee to whom the rights granted under this Agreement
are assigned in accordance with Section 11 hereof.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
The securities entitled to the benefits of this Agreement are
the Registrable Securities.
3. REGISTRATION RIGHTS
(a) Piggy-back Registration.
(i) For a period of one (1) year from the date after the
closing of the transactions contemplated by the Asset Purchase Agreement, if
the Company proposes to file a registration statement under the Securities Act
with respect to an offering by the Company for its own account or for the
account of any other Person of any class of equity security, including any
security convertible into or exchangeable for any equity security (other than a
registration statement on Forms S-4 or S-8 (or their successor forms) or filed
in connection with an exchange offer or an offering of securities solely to the
Company's existing stockholders, and other than as
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set forth in Section 3(a)(ii) below, then the Company shall in each case give
written notice of such proposed filing to the Stockholders of Registrable
Securities at least twenty days before the anticipated filing date, and such
notice shall offer such Stockholders the opportunity to register such number of
Registrable Securities as each such Stockholder may request (a "Piggy-back
Registration"). The Company shall use reasonable efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit the
Stockholders of Registrable Securities requested to be included in the
registration for such offering to include such securities in such offering on
the same terms and conditions as any similar securities of the Company included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering delivers an opinion to the Stockholders of
Registrable Securities that the total amount of securities which they and any
other Persons (other than the Company) intend to include in such offering is
sufficiently large to materially and adversely affect the success of such
offering, then the amount of Registrable Securities to be offered for the
accounts of Stockholders of Registrable Securities shall be reduced in inverse
order of the priority of registration rights held by holders of securities
requesting inclusion therein to the extent necessary, in the opinion of such
managing underwriter, to reduce the total amount of securities to be included
in such offering to the amount recommended by such managing underwriter;
provided, that the reduction imposed upon Stockholders of Registrable
Securities shall not be greater, on a percentage basis with respect to the
Registrable Securities requested to be included, than the reduction imposed
upon other Persons whose Piggy-back registration rights are pari passu with
those granted hereby with respect to the amount of securities requested for
inclusion in such registration.
(ii) Notwithstanding anything to the contrary contained in
this Agreement, the Company shall not be required to include Registrable
Securities in any registration statement if the proposed registration is (i) a
registration of a stock option or other employee incentive compensation or
employee benefit plan or of securities issued or issuable pursuant to any such
plan, or a registration statement relating to warrants, options or shares of
capital stock granted or to be granted or sold primarily to employees,
directors or officers of the Company, (ii) a registration of securities issued
or issuable pursuant to a stockholder reinvestment plan or other similar plan,
(iii) a registration of securities issued in exchange for any securities or any
assets of, or in connection with a merger or consolidation with, an
unaffiliated company, (iv) a registration of securities pursuant to a "rights"
or other similar plan designed to protect the Company's stockholders from a
coercive or other attempt to cause a change in control of the Company, (v) a
registration of securities filed pursuant to Rule 145 under the Securities Act
or any successor rule, or (vi) a registration of preferred stock or securities
issued in connection with any debt or preferred stock financing of the Company.
(iii) The Company may withdraw any registration statement
and abandon any proposed offering initiated by the Company without the consent
of any Stockholder of Registrable Securities, notwithstanding the request of
any such Stockholder to participate therein in accordance with this provision,
if the Company determines in its sole discretion that such action is in the
best interests of the Company and its stockholders (for this purpose, the
interest of the Stockholders shall not be considered).
(b) Shelf Registration.
The Company shall file a "shelf" registration statement on any
appropriate form pursuant to Rule 415 (or any similar rule that may be adopted
by the Commission) under the Securities Act, as promptly as practicable and in
no event later than sixty (60) calendar days after
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the closing of the transactions contemplated by the Asset Purchase Agreement.
The Company agrees to use its best efforts to cause such shelf registration
statement to become effective as promptly as practicable after the filing
thereof and thereafter to keep it continuously effective, for a period of one
(1) year from the date after the closing of the transactions contemplated by
the Asset Purchase Agreement. Notwithstanding anything herein to the contrary,
the period during which the Company is obligated to maintain the effectiveness
of a registration statement hereunder will terminate when all the Registrable
Securities covered by the registration statement have been sold.
4. REGISTRATION PROCEDURES.
In connection with the Company's Piggy-back or shelf
registration obligations pursuant to Section 3 hereof, the Company shall as
expeditiously as reasonably practicable:
(a) Prepare and file with the Commission a registration statement
on an appropriate form under the Securities Act and use its best efforts to
cause such registration statement to become effective; provided, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the Stockholders and the underwriters, if
any, as soon as practicable, copies of all such documents proposed to be filed,
which documents will be subject to the review of the Stockholders and the
underwriters, and the Company will not file any registration statement or
amendment thereto, or any prospectus or any supplement thereto, to which the
underwriters, if any, or the holders of a majority of the Registrable
Securities shall reasonably object in light of the requirements of the
Securities Act and any other applicable laws and regulations.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to a registration statement as may be necessary to
keep such registration statement effective for the applicable period; cause the
related prospectus to be filed pursuant to Rule 424(b) under the Securities
Act; cause such prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424(b) under
the Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during the applicable period in accordance with the intended methods
of disposition set forth in such registration statement or supplement to such
prospectus.
(c) Notify the Stockholders and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such advice in writing,
(i) when a prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to a registration statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to a registration
statement or related prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of a
registration statement or the initiation of any proceeding for that purpose,
(iv) if at my time the representations and warranties of the Company
contemplated by Section 4(l) cease to be true and correct, (v) of the receipt
by the Company of any notification with respect to the suspension or
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation of any proceeding for such purpose, (vi) of the happening of
any event which requires the making of any changes in a registration statement
or related prospectus so that such documents will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements
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therein not misleading, and (vii) of the Company's reasonable determination
that a post-effective amendment to a registration statement would be
appropriate or that there exist circumstances not yet disclosed to the public
which make further sales under such registration statement inadvisable pending
such disclosures and post-effective amendment.
(d) Exercise its best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters or the holders of a
majority of the Registrable Securities in connection with an underwritten
offering, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities agree should be included therein
relating to such sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of shares of
Registrable Securities being sold to such underwriters and the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; and supplement or make amendments to any registration statement if
requested by the holders of a majority of the Registrable Securities or any
underwriter of such Registrable Securities.
(f) Furnish to the Stockholders and each managing underwriter, if
any, without charge, at least one signed copy of the registration statement,
any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference).
(g) Deliver without charge to the Stockholders and the
underwriters, if any, as many copies of the prospectus or prospectuses
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; and the Company consents to the use of
such prospectus or any amendment or supplement thereto by the Stockholders and
the underwriters, if any, in connection with the offer and sale of the
Registrable Securities covered by such prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities,
register or qualify or cooperate with the Stockholders, the underwriters, if
any, and respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions as the Stockholders or an
underwriter reasonably requests in writing; keep each such registration or
qualification effective during the period such registration statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable registration statement; provided, however,
that the Company will not be required in connection therewith or as a condition
thereto to qualify generally to do business or subject itself to general
service of process in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Stockholders and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in
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such denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of Registrable
Securities to the underwriters.
(j) Use its best efforts to cause the Registrable Securities
covered by the applicable registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
if any, to consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 4(c)
(ii) - (vii) above, prepare a supplement or post-effective amendment to the
applicable registration statement or related prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchaser of the Registrable Securities being
sold thereunder, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading.
(l) Enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the Registrable Securities to be covered by such registration
are to be offered in an underwritten offering: (i) make such representations
and warranties to the Stockholders with respect to the registration statement,
prospectus and documents incorporated by reference, if any, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof with respect to the registration
statement and the prospectus in the form, scope and substance which are
customarily delivered in underwritten offerings; (iii) in the case of an
underwritten offering, enter into an underwriting agreement in form, scope and
substance as is customary in underwritten offerings and obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters and not reasonably objected to by the holders of a majority of the
Registrable Securities) addressed to the Stockholders and the underwriters, if
any, covering the matters customarily covered in opinions delivered in
underwritten offerings and such other matters as may be reasonably requested by
the holders of a majority of the Registrable Securities and such underwriters;
(iv) obtain "cold comfort" letters and updates thereof from the Company's
independent certified public accountants addressed to the Stockholders and the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters by accountants in
connection with underwritten offerings; (v) if any underwriting agreement is
entered into, set forth in full in such underwriting agreement the
indemnification provisions and procedures customarily included in underwriting
agreements in underwritten offerings; and (vi) deliver such documents and
certificates as may be requested by the managing underwriters, if any, and the
holders of a majority of the Registrable Securities to evidence compliance with
clause (k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
(m) Make available for inspection by a representative of the
Stockholders, any underwriter participating in any disposition pursuant to such
registration, and any attorney or accountant retained by the Stockholders or
such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with
such registration; provided
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that any records, information or documents that are designated by the Company
in writing as confidential shall be kept confidential by such Persons unless
disclosure of such records, information or documents is required by applicable
law or court or administrative order.
(n) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make generally available to its
security holders earnings statements satisfying the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder.
5. CONTENTS OF REGISTRATION STATEMENT.
In connection with any registration of Registrable Securities,
the Company may require each Stockholder to furnish to the Company such
information regarding itself and the distribution of such securities as the
Company may from time to time reasonably request in writing. If the Company,
in the exercise of its reasonable judgment, objects to any information relating
to the Company requested by the Stockholders or the underwriters, if any, to be
included in any registration statement or prospectus or any amendments or
supplements thereto, the Company shall not be obligated to include such
objectionable information, and the Stockholders may withdraw the Registrable
Securities from such registration, in which event the shelf registration
statement or amendment thereto shall be filed as soon as agreement with respect
to any proposed change shall be reached among the Company, the holders of a
majority of the Registrable Securities, and the managing underwriter, if any.
6. STAND-OFF AGREEMENT.
Each Stockholder agrees by acquisition of Registrable
Securities that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 4(c)(ii)-(vii) hereof, such
Stockholder will forthwith discontinue disposition of Registrable Securities
covered by such registration statement or prospectus until the Stockholder's
receipt of copies of the supplemented or amended prospectus contemplated by
Section 4(k) hereof, or until it is advised in writing by the Company that the
use of the applicable prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in such
prospectus, and, if so directed by the Company, each such Stockholder will
deliver to the Company all copies, other than permanent file copies then in
such Stockholder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time period regarding maintaining the
effectiveness of such registration statement set forth in Section 3 shall be
extended by the number of days during the time period from and including the
date of the giving of such notice pursuant to Section 4(c) hereof to and
including the date when the Stockholders shall have (i) received the copies of
the supplemented or amended prospectus contemplated by Section 4(k) hereof, or
(ii) been advised in writing by the Company that use of the prospectus may be
resumed.
7. EXPENSES OF REGISTRATION.
In connection with a registration, filing or qualification
pursuant to Section 3 hereof, Stockholders shall pay all underwriting
commissions and discounts attributable to sales of Registrable Securities,
registration fees payable to the Commission and the New York Stock Exchange,
and fees and expenses of Stockholder's counsel. All other expenses of a
registration, filing or qualification pursuant to Section 3 hereof, including,
without limitation, printers' and accounting fees, and the fees and
disbursements of counsel for the Company, shall be borne and
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paid by the Company.
8. UNDERWRITTEN REGISTRATIONS.
If any of the Registrable Securities covered by any
registration under Section 3 are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering may be selected by the Stockholders; provided, that
such investment bankers and managers must be reasonably satisfactory to the
Company.
9. INDEMNIFICATION.
In the event any Registrable Securities are included in a
registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Stockholder, the officers and directors of such Stockholder,
each underwriter of Registrable Securities and each other Person, if any, who
controls such Stockholder or such underwriter within the meaning of Section 15
of the Securities Act, against any losses, claims, damages, liabilities or
expenses, joint or several, to which any such Person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto, or any
post-effective amendment thereof, or any omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, if
used prior to the effective date of the registration statement and not
corrected in the final prospectus, or contained in the final prospectus (as
amended or supplemented, if the Company shall have filed with the Commission
any amendment thereof or supplement thereto), or any omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse any
such Person for any legal or other expenses reasonably incurred by such Person
in connection with investigating or defending any such loss, claim, damage,
liability or expense; provided, however, that the indemnity agreement contained
in this Section 9(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld); and provided further that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon any such untrue statement or omission or alleged
untrue statement or omission which has been made in said registration
statement, preliminary prospectus, prospectus or amendment or supplement or
omitted therefrom in reliance upon and in conformity with information furnished
in writing to the Company by the Stockholders or such underwriter specifically
for use in the preparation thereof.
(b) To the extent permitted by law, each Stockholder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
each underwriter and each Person who controls any underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages, liabilities or expenses, joint or several, to which the Company or any
such Person, may become subject under the Securities
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Act or otherwise, and will reimburse the Company or any such Person for any
legal or other expenses reasonably incurred by the Company or such Person in
connection with investigating or defending any such loss, claim, damage,
liability or expense, but only insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission of a material fact referred to in clause (i) or (ii) of Section 9(a)
hereof, in each case to the extent (and only to the extent) that such untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with information furnished in writing by or on
behalf of such Stockholder specifically for use in connection with such
registration; provided, however, that the indemnity agreement contained in this
Section 9(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if such settlement is effected without the
consent of such Stockholder, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof; provided,
however, that the failure to so notify the indemnifying party shall not relieve
the indemnifying party from any liability hereunder except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice.
The indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding.
(d) If the indemnification provided for in this Section 9 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, 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 benefits received by the
indemnifying party and the indemnified parties, the relative fault of the
indemnifying party and indemnified parties in connection with the actions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. 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
intent, 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, subject to the limitations set forth in Section 9(c) hereof, 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 9(d) were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in the
immediately preceding paragraph. 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
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fraudulent misrepresentation.
10. REPORTS UNDER EXCHANGE ACT.
With a view to making available to the Stockholders the
benefits of Rule 144 under the Securities Act and any other rule or regulation
of the Commission that may at any time permit the Stockholders to sell
securities of the Company to the public without registration, the Company
agrees, for so long as any Stockholder holds shares of Common Stock acquired by
it pursuant to the Asset Purchase Agreement, to:
(a) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act, and the rules and regulations adopted by the Commission
thereunder; and
(b) furnish to the Stockholders forthwith upon request (i) a
written statement by the Company as to whether it has complied with the
reporting requirements of Rule 144, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents filed by
the Company pursuant to the Exchange Act, and (iii) such other information as
may be reasonably requested in availing the Stockholders of any rule or
regulation of the Commission which permits the sale of any securities without
registration.
11. ASSIGNMENT OF REGISTRATION RIGHTS.
The right to cause the Company to register Registrable
Securities pursuant to this Agreement may not be transferred or assigned, in
whole or in part, by any Stockholder without the prior written consent of the
Company, except to a Qualified Transferee of such Stockholder. Any such
transferring Stockholder shall notify the Company in writing at least five
business days prior to effecting any such transfer or assignment, specifying
the name and address of the Qualified Transferee(s) and identifying the
securities with respect to which such rights are being assigned.
12. MISCELLANEOUS.
(a) Successors and Assigns; No Third Party Benefit. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective permitted successors and assigns. Nothing in this Agreement, express
or implied, is intended to confer upon any party other than the parties hereto
and their respective permitted successors and assigns any rights or remedies
under or by reason of this Agreement, except as expressly provided in this
Agreement.
(b) Governing Law. This Agreement, and the rights and obligations
of the parties hereunder, shall be interpreted, governed by, and construed and
enforced in accordance with, the substantive laws of the State of Texas,
without giving effect to the principles of conflicts of law thereof.
(c) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed by
all, the parties hereto.
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(d) Titles and Subtitles. The titles and subtitles used in this
Agreement are inserted for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be delivered by (i)
personal delivery, (ii) expedited delivery service or express courier, (iii)
certified or registered mail, postage prepaid, or (iv) confirmed facsimile
transmission. Any such notice shall be deemed given upon its receipt at the
following address (or such other address as may be specified by such party upon
written notice to the others in accordance with this Section 12(e)):
IF TO THE COMPANY:
CLIFFS DRILLING COMPANY
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx or Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
WITH COPIES TO:
Mr. W. Xxxxxx Xxxxxx
Xxxxxx & Xxxxxxxx, P.C.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
IF TO THE STOCKHOLDERS:
WELL SERVICES (MARINE) LTD.
Otaheite Industrial Park
South Oropouche, P.O. Box 152 San Xxxxxxxx
Xxxxxxxx, W.I.
Attn: Xxxxxxx Xxxxx or Xxxxxxx Xxxxx
Telephone No.: 0 000 000-0000 or 7531
Telecopier No.: 0 000 000-0000
XXXXXXX X. XXXXX AND/OR XXXXXXX X. XXXXXXXXX
Otaheite Industrial Park
South Oropouche, X.X. Xxx 000 Xxx Xxxxxxxx
Xxxxxxxx, X.X.
Telephone No.: 0 000 000-0000 or 7531
Telecopier No.: 0 000 000-0000
WITH COPIES TO:
Hobsons, Attorneys-at-Law and Notaries Public
Xxxxxxx Xxxxx, 00-00 Xxxxx Xxxxxx
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San Xxxxxxxx
Xxxxxxxx and Tobago, WI
Attn: Xxxxxxx Xxxxxxxxxxx CMT
Telephone No.: 0 000 000 0000
Telecopier No.: 1 868 652 1282
(f) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
(which may be generally or in a particular instance and either retroactively or
prospectively) may not be given, unless the Company has obtained the written
consent of the holders of a majority of the Registrable Securities; provided,
however, that in the event any such amendment, modification, supplement, waiver
or consent shall materially and adversely affect the rights of a single
Stockholder or a similarly situated group of Stockholders (as opposed to the
Stockholders generally), such amendment, modification, supplement, waiver or
consent shall not be effective as against such Stockholder or group of
Stockholders unless approved by such Stockholder or group of Stockholders.
(g) Severability. If any provision or any portion of any provision
of this Agreement or the application of such provision or any portion thereof
to any Person or circumstance shall be held invalid or unenforceable, the
remaining portion of such provision, as it applies to other Persons or
circumstances and the remaining provisions, shall not be affected or impaired
thereby.
(h) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter herein contained. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the securities received by the Stockholders pursuant to the
Acquisition. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
COMPANY:
CLIFFS DRILLING COMPANY:
By: /s/ XXX X. XXXX
--------------------------------------
Printed Name: Xxx X. Xxxx
Title: Director
STOCKHOLDERS:
WELL SERVICES (MARINE) LTD.:
(In Members Voluntary Liquidation)
By:/s/ XXXXXX XXXXXXX XXXXXXXXXXXXXX
---------------------------------------
Printed Name: Xxxxxx Xxxxxxx Xxxxxxxxxxxxxx
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Title: Liquidator
By:/s/ XXXXXXX X. XXXXX
---------------------------------------
XXXXXXX X. XXXXX
By:/s/ XXXXXXX X. XXXXXXXXX
---------------------------------------
XXXXXXX X. XXXXXXXXX
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