INVESTORS RIGHTS AGREEMENT
EXHIBIT 10.1
This Investors Rights Agreement dated as of August 14, 2006 (this “Agreement”) is entered into
by and among Xxxxx-Xxxxxxxx Energy Inc., a Delaware corporation (the “Company”), and the parties
whose names appear on Exhibit A (collectively, the “Investors”).
WHEREAS, the Company and the Investors have entered into a Stock Purchase Agreement dated as
of April 27, 2006 (the “Stock Purchase Agreement”) pursuant to which each of the Investors shall
receive a number of shares of the common stock, par value $0.01 per share, of the Company (the
"Common Stock”) to be determined as set forth therein;
WHEREAS, in order to induce each of the Investors to enter into the Stock Purchase Agreement,
the Company has agreed to grant certain registration rights to the Investors with respect to such
shares and certain Board designation rights, in each case, subject to the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Definitions. As used herein, the following terms have the indicated
meanings, unless the context otherwise requires:
"Agreement” has the meaning given to such term in the preamble hereto.
"Beneficially Own,” “Beneficially Owned,” “Beneficial Ownership” and “Beneficial Owner” with
respect to any securities means a Holder’s having such ownership, control or power to direct the
voting with respect to, or which otherwise enables a Holder to legally act with respect to, such
securities as contemplated hereby, including without limitation pursuant to any agreement,
arrangement or understanding, regardless of whether in writing. Securities “Beneficially Owned”
shall include securities Beneficially Owned by all other persons with whom a Holder would
constitute a “group” as within the meaning of Section 13(d) of the Exchange Act.
"Blackout Period” means a period in each case commencing on the day immediately after the
Company notifies the Holders that they are required, pursuant to Section 4(b)(vi), to suspend
offers and sales of Registrable Securities during which the Company, in the good faith judgment of
the Board, determines (because of the existence of, or in anticipation of, any acquisition,
financing activity, or other transaction involving the Company, or the unavailability for reasons
beyond the Company’s control of any required financial statements, disclosure of information which
is in its best interest not to publicly disclose, or any other event or condition of similar
significance to the Company) that the registration and distribution of (and/or the registration of
the offer and sale of) the Registrable Securities covered or to be covered by the Registration
Statement would be seriously detrimental to the Company and its stockholders and ending on the
earlier of (a) the date upon which the material non-public information commencing the Blackout
Period is disclosed to the public or ceases to be material and (b) such time as the Company
notifies the selling Holders that the Company will no longer delay such filing of the Registration
Statement, recommence taking steps to make such Registration Statement effective, or allow sales
pursuant to such Registration Statement to resume; provided that no Blackout Period may last for
more than 60 consecutive days; provided, further, that during any period of 365 consecutive days,
Blackout Periods may not, in the aggregate, last for more than the greater of (a) zero days and (b)
the result of 90 days minus the number of days that holders are required pursuant to Section 4(c)
to discontinue and suspend disposition of Registrable Securities because of the happening of any
event described in Section 4(b)(vi).
"Board” means the board of directors of the Company.
"Business Day” means any day of the year, other than a Saturday, Sunday, or other day on which
the SEC is required or authorized to close.
"Closing Date” has the meaning given to such term in the Stock Purchase Agreement.
"Common Stock” has the meaning given to such term in the recitals hereto.
"Company” has the meaning given to such term in the preamble hereto.
"Designation Rights Termination Date” has the meaning given to such term in Section 2(b)
hereto.
"Effectiveness Period” has the meaning given to such term in Section 4(b)(i) .
"Equity Securities Offering” means any underwritten registered offering of Relevant
Securities, and any offering or placement of any Relevant Securities pursuant to Rule 144A under
the Securities Act.
"Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Family Member” means (a) with respect to any individual, such individual’s spouse, any
descendants (whether natural or adopted), any trust all of the beneficial interests of which are
owned by any of such individuals or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any
such individual, and any corporation, association, partnership or limited liability company all of
the equity interests of which are owned by those above described individuals, trusts or
organizations and (b) with respect to any trust, the owners of the beneficial interests of such
trust.
"Form S-1” means such form under the Securities Act as in effect on the date of this Agreement
or any successor registration form thereto under the Securities Act subsequently adopted by the
SEC.
"Form S-3” means such form under the Securities Act as in effect on the date of this Agreement
or any successor registration form thereto under the Securities Act subsequently adopted by the
SEC.
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"Holder” means each Investor or any of such Investor’s successors and Permitted Assignees who
acquire rights in accordance with this Agreement with respect to the Registrable Securities
directly or indirectly from another Holder (including from any Permitted Assignee).
"Inspector” means any attorney, accountant or other agent retained by a Holder for the
purposes provided in Section 4(b)(x).
"Investor” has the meaning given to such term in the preamble hereto.
"Investor Director” means any member of the Board that was nominated for election to the Board
by the Holders pursuant to and in accordance with Section 2(a).
"Market Standoff Period” with respect to each Equity Securities Offering, the period beginning
on the date of first sale of securities pursuant to such Equity Securities Offering and ending on
the date that shall be requested by the Company or the underwriters or initial purchasers retained
by the Company to facilitate such Equity Securities Offering; provided, however, that each such
period shall not be more than 90 days; provided further that (i) such period shall be no longer
than the shortest period imposed by the Company or the underwriters upon any other person or entity
and (ii) if any other person or entity receives a waiver with respect to any such matters, the
Investors shall be given a waiver with respect to their Shares as well.
"NASD” means the National Association of Securities Dealers.
"Permitted Assignee” means (a) with respect to a partnership, its partners or former partners
in accordance with their partnership interests, (b) with respect to a corporation, its stockholders
in accordance with their interest in the corporation, (c) with respect to a limited liability
company, its members or former members in accordance with their interest in the limited liability
company, (d) with respect to an individual party, any Family Member of such party, (e) an entity
that is controlled by, controls, or is under common control with a transferor, or (f) a party to
this Agreement.
"register,” “registered,” and “registration” refer to a registration effected by preparing and
filing a registration statement in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
"Registrable Securities” means the Shares, excluding any such Shares (a) that have been
publicly sold or may be sold immediately without registration or the requirement to make filings
with the SEC under the Securities Act either pursuant to Rule 144 of the Securities Act or
otherwise, (b) sold by a person in a transaction pursuant to a registration statement filed under
the Securities Act or (c) that are at the time subject to an effective registration statement under
the Securities Act (other than the Registration Statement contemplated hereby).
"Registration Expenses” has the meaning given to such term in Section 4(d).
"Registration Statement” has the meaning given to such term in Section 4(a).
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"Relevant Security” means the Shares, any other equity security of the Company or any of its
subsidiaries and any security convertible into, or exercisable or exchangeable for, any Shares or
other such equity security.
"SEC” means the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
"SEC Effective Date” means the date the Registration Statement is originally declared
effective by the SEC.
"Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute
promulgated in replacement thereof, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect from time to time.
"Selling Expenses” has the meaning given to such term in Section 4(d).
"Shares” means the shares of Common Stock issued to each Investor pursuant to the Stock
Purchase Agreement and (a) any and all shares of capital stock or other equity securities of the
Company which are added to or exchanged or substituted for such shares of Common Stock by reason of
the declaration of any stock dividend or stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other such modification of the capital
structure of the Company; and (b) any and all shares of capital stock or other equity securities of
any other corporation (now or hereafter organized under the laws of any state or other governmental
authority) with which the Company is merged, which results from any consolidation or reorganization
to which the Company is a party, or to which is sold all or substantially all of the shares or
assets of the Company, for which such shares of Common Stock are exchanged or substituted in
connection with such merger, consolidation, reorganization or sale, if immediately after such
merger, consolidation, reorganization or sale, the Company or the stockholders of the Company own
equity securities having in the aggregate more than 50% of the total voting power of such other
corporation.
"Stock Purchase Agreement” has the meaning given to such term in the recitals hereto.
"Transfer” has the meaning given to such term in Section 3(a).
Section 2. Board Designation Rights.
(a) Designation. Until the Designation Rights Termination Date, the Investors shall
have the right to designate two nominees for election to the Board.
(b) Termination of Designation Rights. The Investors shall not be entitled to
designate any nominees for election to the Board pursuant to this Agreement from and after the date
(the “Designation Rights Termination Date”) that is the first date on which the Shares Beneficially
Owned by the Investors collectively represent less than twenty percent (20%) of the Shares
initially acquired by the Investors pursuant to the Stock Purchase Agreement.
(c) Company Support. At all times prior to the Designation Rights Termination Date,
the Company shall support the nominations of the persons designated by the Holders pursuant to
Section 2(a), and the Company shall use its best efforts to cause the Board (and the Company’s
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nominating committee, if any) to recommend the inclusion of such persons in the slate of nominees
recommended to stockholders for election as directors at each annual meeting of stockholders of the
Company.
(d) Vacancies. If at any time prior to the Designation Rights Termination Date, a
vacancy is created on the Board by reason of the incapacity, death, removal or resignation of any
Investor Director, then the Company shall use its best efforts to cause the Board to appoint an
individual designated by the Holders to fill such vacancy until the next meeting of the Company’s
stockholders at which directors are elected.
Section 3. Market Standoff. Notwithstanding anything to the contrary set forth in this
Agreement, with respect to each Equity Securities Offering conducted after the Closing Date, the
following provisions of this Section 3 shall apply, if and only if (x) the underwriters or initial
purchasers retained by the Company to facilitate such offering request, in connection with such
offering, that the officers or directors or significant stockholders of the Company refrain from
selling any Relevant Security during any period, and (y) either (1) any nominee designated by the
Investors pursuant to Section 2(a) is a member of the Board, or (2) the Holders Beneficially Own
shares of Common Stock representing at least 10% of the fully diluted equity interests in the
Company (calculated giving effect to the exercise of all outstanding options, warrants and other
rights to purchase to acquire any Common Stock of the Company):
(a) Without the prior written consent of the Company, during the Market Standoff Period
applicable to such Equity Securities Offering, each Holder will not (i), directly or indirectly,
offer, sell, agree to offer or sell, solicit offers to purchase, grant any call option or purchase
any put option with respect to, pledge, borrow or otherwise dispose of any Relevant Security, or
(ii) establish or increase any “put equivalent position” or liquidate or decrease any “call
equivalent position” (in each case within the meaning of Section 16 of the Exchange Act) with
respect to any Relevant Security, or otherwise enter into any swap, derivative or other transaction
or arrangement that transfers to another, in whole or in part, any economic consequence of
ownership of a Relevant Security (each of the transactions described in the immediately preceding
clauses (i) and (ii), being referred to as a “Transfer”), regardless of whether such transaction is
to be settled by delivery of Relevant Securities, other securities, cash or other consideration;
provided, however, that a Transfer to a Permitted Assignee will not be subject to this Section 3 as
long as (x) such Transfer is effected in accordance with applicable securities laws; (y) such
transferee agrees in writing to become subject to the terms of this Agreement as a Holder; and (z)
the Company is given written notice by such Holder of such Transfer, stating the name and address
of the transferee and identifying the Shares being Transferred.
(b) Furthermore, each Holder hereby authorizes the Company during the Market Standoff Period
to cause any transfer agent for the Relevant Securities to decline to transfer, and to note stop
transfer restrictions on the stock register and other records relating to, any Relevant Securities
for which such Holder is the record holder and, in the case of Relevant Securities for which such
Holder is the Beneficial Owner but not the record holder, agrees during the Market Standoff Period
to cause the record holder thereof to cause the relevant transfer agent to decline to transfer, and
to note stop transfer restrictions on the stock register and other records relating to, such
Relevant Securities.
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(c) Without the prior written consent of the Company, during the Market Standoff Period such
Holder (x) will not participate in the filing with the SEC of any registration statement, or
circulate or participate in the circulation of any preliminary or final prospectus or other
disclosure document with respect to any proposed offering or sale of a Relevant Security and (y)
will not exercise any rights the undersigned may have to require registration with the SEC of any
proposed offering or sale of a Relevant Security (including without limitation pursuant to this
Agreement).
Section 4. Registration Rights.
(a) Shelf Registration Statement. As promptly as reasonably practicable after the
Closing Date (but no later than 30 after the Closing Date, unless a later date is agreed to in
writing by the Holders of a majority of the Registrable Securities), the Company shall file with
the SEC a shelf registration statement on Form S-1 (or, if the Company is eligible to use such
form, Form S-3) relating to the registration of the offer and resale by the Holders of all of the
Registrable Securities (the “Registration Statement”); provided, however, that the Company shall
not be obligated to effect any such registration pursuant to this Section 4(a), or keep such
registration or the Registration Statement effective pursuant to Section 4(b)(i), during any
Blackout Period.
(b) Registration Procedures. In the case of each registration, qualification, or
compliance effected by the Company pursuant to Section 4(a), the Company will keep each Holder
including securities therein reasonably advised in writing (which may include e-mail) as to the
initiation of each registration, qualification, and compliance and as to the completion thereof.
In addition, the Company hereby agrees as follows with respect to the Registration Statement.
(i) The Company will use its commercially reasonable efforts to cause the Registration
Statement to become and remain effective at least for a period ending with the first to
occur of (A) the sale by the Holders of all Registrable Securities covered by the
Registration Statement, (B) the availability under Rule 144 for the Holders to immediately,
freely resell without restriction or filing with the SEC all Registrable Securities covered
by the Registration Statement, or (C) the date that is two years after the SEC Effective
Date (provided, however, that if the Company files the Registration Statement on Form S-1
and subsequently becomes eligible to use Form S-3, it may file a post-effective amendment to
such Form S-1 on Form S-3 prior to the end of such period and use its commercially
reasonable efforts to cause the Registration Statement as amended to become effective until
the end of such period) (in any such case, the “Effectiveness Period”). At any time after
the end of the Effectiveness Period, if (a) the Holders Beneficially Own Registrable
Securities representing more than 10% of the fully diluted equity interests in the Company
(calculated giving effect to the exercise of all outstanding options, warrants and other
rights to purchase to acquire any Common Stock of the Company) or (b) any nominee designated
by the Investors pursuant to Section 2(a) is a member of the Board, then (x) as promptly as
reasonably practicable after the written request of Holders of greater than 50% of the
Registrable Securities, the Company shall file with the SEC another shelf registration
statement on Form S-1 (or, if the Company is eligible to use such form, Form S-3) relating
to the registration of the offer and resale by the Holders of all of the Registrable
Securities, (y) the provisions of this Agreement
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(including without limitation the provisions of Section 4(a) and Section 4(b)) shall apply
to such registration statement and (z) such registration statement shall be deemed to be the
Registration Statement (as defined in Section 4(a)) for purposes of this Agreement.
(ii) If the Registration Statement becomes subject to review by the SEC, the Company
will promptly respond to all comments and diligently pursue resolution of any comments to
the satisfaction of the SEC.
(iii) The Company will prepare and file with the SEC such amendments and supplements to
the Registration Statement and any prospectus used in connection therewith as may be
reasonably necessary to keep the Registration Statement effective during the Effectiveness
Period, and will 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 method(s) of disposition by the sellers thereof set forth in
such Registration Statement.
(iv) The Company will furnish, without charge, to each Holder (A) a reasonable number
of copies of the Registration Statement (including any exhibits thereto other than exhibits
incorporated by reference), each amendment and supplement thereto as such Holder may
request, (B) such number of copies of the prospectus included in such Registration Statement
(including each preliminary prospectus and any other prospectus filed under Rule 424 under
the Securities Act) as such Holder may request, in conformity with the requirements of the
Securities Act, and (C) such other documents as such Holder may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by such Holder, but only
during the Effectiveness Period.
(v) The Company will use its commercially reasonable efforts to register or qualify the
Registrable Securities under such other applicable securities or blue sky laws of such
jurisdictions as any Holder reasonably requests as may be necessary for the marketability of
the Registrable Securities (such request to be made by the time the Registration Statement
is deemed effective by the SEC) and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such Holder; provided, however,
that the Company shall not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this paragraph (v),
(B) subject itself to taxation in any such jurisdiction, or (C) consent to general service
of process in any such jurisdiction.
(vi) As promptly as practicable after becoming aware of such event, the Company will
notify each Holder of such Registrable Securities at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of any event
which comes to the Company’s attention if as a result of such event the prospectus included
in the Registration Statement contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company shall promptly prepare and furnish to such Holder a
supplement or amendment to such prospectus (or prepare and file appropriate reports under
the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall
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not contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading,
unless suspension of the use of such prospectus otherwise is authorized herein or in the
event of a Blackout Period, in which case no supplement or amendment need be furnished (or
Exchange Act filing made) until the termination of such suspension or Blackout Period.
(vii) The Company will comply, and continue to comply during the period that the
Registration Statement is effective under the Securities Act, in all material respects with
the Securities Act and the Exchange Act and with all applicable rules and regulations of the
SEC with respect to the disposition of all securities covered by the Registration Statement.
(viii) As promptly as practicable after becoming aware of such event, the Company will
notify each Holder of Registrable Securities being offered or sold pursuant to the
Registration Statement of the issuance by the SEC of any stop order or other suspension of
effectiveness of the Registration Statement.
(ix) The Company will permit the Holders of Registrable Securities being included in
the Registration Statement and their legal counsel, at such Holders’ sole cost and expense
to review and have a reasonable opportunity to comment on the Registration Statement and all
amendments and supplements thereto at least two Business Days prior to their filing with the
SEC.
(x) The Company will make available for inspection by any Holder and any Inspector
retained by such Holder, at such Holder’s sole expense, all records as shall be reasonably
necessary to enable such Holder to exercise its due diligence responsibility, and cause the
Company’s officers, directors, and employees to supply all information which such Holder or
any Inspector may reasonably request for purposes of such due diligence; provided, however,
that such Holder shall hold in confidence and shall not make any disclosure of any record or
other information which the Company determines in good faith to be confidential, and of
which determination such Holder is so notified at the time such Holder receives such
information, unless (w) such Holder had, or obtained, knowledge of such information without
violation of or protection under any agreements with the Company or, to its knowledge any
third party, (x) the disclosure of such record is reasonably necessary to avoid or correct a
misstatement or omission in the Registration Statement and a reasonable time prior to such
disclosure the Holder shall have informed the Company of the need to so correct such
misstatement or omission and the Company shall have failed to correct such misstatement of
omission, (y) the release of such record is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction or (z) the information in such
record has been made generally available to the public other than by disclosure in violation
of this Agreement or any other agreement. The Company shall not be required to disclose any
confidential information in such records to any Inspector until and unless such Inspector
shall have entered into a confidentiality agreement with the Company with respect thereto,
containing terms substantially similar to those set forth in this Section 4(b)(x), which
agreement shall permit such Inspector to disclose records to the Holder who has retained
such Inspector. Each Holder agrees that it shall, upon learning that disclosure of such
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records is sought in or by a court or governmental body of competent jurisdiction or through
other means, give prompt notice to the Company and allow the Company, at the Company’s
expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, the records deemed confidential. The Company shall hold in confidence and shall
not make any disclosure of information concerning a Holder provided to the Company pursuant
to this Agreement unless (A) disclosure of such information is reasonably necessary to
comply with federal or state securities laws, (B) disclosure of such information to the
SEC’s Staff of the Division of Corporation Finance is reasonably necessary to respond to
comments raised by such staff in its review of the Registration Statement, (C) disclosure of
such information is reasonably necessary to avoid or correct a misstatement or omission in
the Registration Statement, (D) release of such information is ordered pursuant to a
subpoena or other order from a court or governmental body of competent jurisdiction, or (E)
such information has been made generally available to the public other than by disclosure in
violation of this or any other agreement. The Company agrees that it shall, upon learning
that disclosure of such information concerning a Holder is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt notice to
such Holder and allow such Holder, at such Holder’s expense, to undertake appropriate action
to prevent disclosure of, or to obtain a protective order for, such information.
(xi) The Company will use its commercially reasonable efforts to cause all the
Registrable Securities covered by the Registration Statement to be listed or quoted on the
principal securities market on which securities of the same class or series issued by the
Company are then listed or traded.
(xii) The Company will provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities at all times.
(xiii) The Company will cooperate with the Holders of Registrable Securities being
offered pursuant to the Registration Statement to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing Registrable
Securities to be offered pursuant to the Registration Statement and enable such certificates
to be in such denominations or amounts as the Holders may reasonably request and registered
in such names as the Holders may request.
(xiv) The Company will take all other reasonable actions necessary to expedite and
facilitate disposition by the Holders of the Registrable Securities pursuant to the
Registration Statement, including without limitation making its chief executive officer,
president, chief financial officer and other appropriate officers and personnel available to
participate in marketing efforts with respect to any registered underwritten public
offering.
(c) Suspension of Offers and Sales. Each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Company of the happening of any event of the kind
described in Section 4(b)(vi) or of the commencement of an Blackout Period, such Holder shall
discontinue and suspend disposition of Registrable Securities pursuant to the Registration
Statement until such Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 4(b)(vi) or notice of the end of the Blackout Period, and, if so directed
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by the Company, such Holder shall deliver to the Company (at the Company’s expense) all copies
(including, without limitation, any and all drafts), other than permanent file copies, then in such
Holder’s possession, of the prospectus covering such Registrable Securities current at the time of
receipt of such notice.
(d) Registration Expenses. All expenses incident to the Company’s performance of or
compliance with this Agreement, including without limitation all registration and filing fees,
messenger and delivery expenses, printing expenses, internal expenses (including without limitation
all salaries and expenses of its officers and employees performing legal or accounting duties), all
fees and expenses associated with filings required to be made with the NASD, as may be required by
the rules and regulations of the NASD, fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, the fees and expenses incurred
in connection with the listing of the securities to be registered on all securities exchanges on
which similar securities issued by the Company are then quoted or listed, fees and disbursements of
counsel for the Company and its independent certified public accountants, and the fees and expenses
of any other persons retained by the Company, in connection with the registration hereunder
(collectively, the “Registration Expenses”) will be borne by the Company, but not including any
roadshow expenses, fees and expenses of counsel for the Holders and any underwriting, broker or
dealer discounts or commissions attributable to the sale of Registrable Securities (which are
hereinafter referred to as “Selling Expenses”). All Selling Expenses shall be borne solely by the
Holders.
(e) Information by Holder. The Holder or Holders of Registrable Securities included
in the Registration Statement shall furnish to the Company such information required under
Regulation S-K under the Securities Act regarding such Holder or Holders and the distribution
proposed by such Holder or Holders as the Company may request in writing. No Holder of Registrable
Securities will be entitled to have such Registrable Securities included in a Registration
Statement if such Holder does not furnish such information requested by the Company.
(f) Indemnification.
(i) In the event of the offer and sale of Registrable Securities held by Holders under
the Securities Act, the Company shall, and hereby does, indemnify and hold harmless, to the
fullest extent permitted by law, each Holder, its directors, officers, partners, each other
person who participates as an underwriter in the offering or sale of such securities, and
each other person, if any, who controls or is under common control with such Holder or any
such underwriter within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, and expenses to which the Holder or any
such director, officer, partner or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or supplement thereto,
or (B) in any materials or information provided to investors by, or with the written
approval of, the
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Company in connection with the marketing of the offering of the Shares (“Marketing
Materials”), including any road show or investor presentations made to investors by the
Company (whether in person or electronically), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading, and the
Company shall reimburse the Holder, and each such director, officer, partner, underwriter
and controlling person for any legal or any other expenses reasonably incurred by them in
connection with investigating, defending or settling any such loss, claim, damage,
liability, action or proceeding; provided that the foregoing shall not apply, and the
Company shall not be liable, in any such case (A) to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises out of or
is based upon an untrue statement or alleged untrue statement in or omission or alleged
omission from such Registration Statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an instrument duly executed by or
on behalf of such Holder specifically stating that it is for use in the preparation thereof,
or (B) to the extent that the Holders failed to comply with the terms of the plan of
distribution mechanics described in the applicable prospectus. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of the
Holders, or any such director, officer, partner, underwriter or controlling person and shall
survive the transfer of such shares by the Holder.
(ii) As a condition to including any Registrable Securities to be offered by a Holder
in the Registration Statement, each such Holder agrees to be bound by the terms of this
Section 4(f) and to indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its directors and officers, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, legal counsel and accountants for
the Company, any underwriter, any other Holder selling securities in such Registration
Statement and any controlling person within the meaning of the Securities Act of any such
underwriter or other Holder, against any losses, claims, damages or liabilities, joint or
several, to which the Company or any such director or officer or controlling person may
become subject under the Securities Act or otherwise, (A) insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from such Registration Statement, any
preliminary prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on behalf of such Holder
specifically stating that it is for use in the preparation thereof, or (B) to the extent
that the Holders failed to comply with the terms of the plan of distribution mechanics
described in the applicable prospectus. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company, or any such director,
officer, partner, underwriter or controlling person and shall survive the transfer of such
shares by the Holder, and such Holder shall reimburse the Company, and each such director,
officer, legal counsel and accountants, underwriter, other Holder, and controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating, defending, or
11
settling and such loss, claim, damage, liability, action, or proceeding; provided, however,
that such indemnity agreement found in this Section 4(f)(ii) shall in no event exceed the
gross proceeds from the offering received by such Holder.
(iii) Promptly after receipt by an indemnified party of notice of the commencement of
any action or proceeding involving a claim referred to in Section 4(f)(i) or Section
4(f)(ii) (including any governmental action), such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party, give written notice to the
indemnifying party of the commencement of such action; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 4(f)(i) or Section 4(f)(ii), except to
the extent that the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party, unless in the
reasonable judgment of counsel to such indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist or the indemnified party may have defenses
not available to the indemnifying party in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal or other
expenses subsequently incurred by the latter in connection with the defense thereof, unless
in such indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the assumption of
the defenses thereof or the indemnifying party fails to defend such claim in a diligent
manner, other than reasonable costs of investigation. Neither an indemnified nor an
indemnifying party shall be liable for any settlement of any action or proceeding effected
without its consent. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement, which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect of such claim or litigation.
Notwithstanding anything to the contrary set forth herein, and without limiting any of the
rights set forth above, in any event any party shall have the right to retain, at its own
expense, counsel with respect to the defense of a claim.
(iv) In the event that an indemnifying party does or is not permitted to assume the
defense of an action pursuant to Section 4(f)(iii) or in the case of the expense
reimbursement obligation set forth in Section 4(f)(i) and Section 4(f)(ii), the
indemnification required by Section 4(f)(i) and Section 4(f)(ii) shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and
when bills received or expenses, losses, damages, or liabilities are incurred.
(v) If the indemnification provided for in this Section 4(f) is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall (A) contribute to the amount paid or
payable by such indemnified party as a result of such loss, liability, claim, damage or
expense as is appropriate to reflect the proportionate relative fault of the indemnifying
party on the one hand and the indemnified party on the other (determined by reference to,
12
among other things, whether the untrue or alleged untrue statement of a material fact or
omission relates to information supplied by the indemnifying party or the indemnified party
and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission), or (B) if the allocation provided by
clause (A) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, not only the proportionate
relative fault of the indemnifying party and the indemnified party, but also the relative
benefits received by the indemnifying party on the one hand and the indemnified party on the
other, as well as any other relevant equitable considerations. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty of such
fraudulent misrepresentation.
(vi) Indemnification similar to that specified in the preceding subsections of this
Section 4(f) (with appropriate modifications) shall be given by the Company and each Holder
of Registrable Securities with respect to any required registration or other qualification
of securities under any federal or state law or regulation or governmental authority other
than the Securities Act.
Section 5. Miscellaneous.
(a) Assignment of Rights; Successors and Permitted Assignees. No Holder may assign
its rights under this Agreement to any party without the prior written consent of the Company;
provided, however, that a Holder may assign its rights under this Agreement without such
restrictions to a Permitted Assignee as long as (i) such transfer or assignment is effected in
accordance with applicable securities laws; (ii) such transferee or assignee agrees in writing to
become subject to the terms of this Agreement as a Holder; and (iii) the Company is given written
notice by such Holder of such transfer or assignment, stating the name and address of the
transferee or assignee and identifying the Shares with respect to which such rights are being
transferred or assigned. Except as otherwise provided herein, the provisions of this Agreement
shall inure to the benefit of, and be binding upon, the successors, Permitted Assignees, executors
and administrators of the parties hereto.
(b) Notices. All notices or other communications which are required or permitted
under this Agreement shall be in writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid, by electronic mail, or by courier
or overnight carrier, to the persons at the addresses set forth below (or at such other address as
may be provided hereunder), and shall be deemed to have been delivered as of the date so delivered:
| If to the Company: | Allis Chalmers Energy Inc. 0000 Xxxxxxxxxx, Xxxxx 000 Xxxxxxx, Xxxxx 00000 Attention: Xxxxxxxx X. Pound, General Counsel Facsimile: (000) 000-0000 |
13
| with a copy (which shall not constitute notice) to: |
Xxxxxxx Xxxxx LLP 000 Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attention: Xxxxxx X. Xxxxxx Facsimile: (000) 000-0000 |
|||
| If to the Investors: | To each Investor at its address set forth on Exhibit A |
|||
| with a copy (which shall not constitute notice) to: |
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxx 00000 Attention: Xxxx Xxxxxxxx Facsimile: (000) 000-0000 |
or at such other address as any party shall have furnished to the other parties in writing.
(c) Specific Performance. Each party to this Agreement agrees that any breach by it
of any provision of this Agreement would irreparably injure the other parties and that money
damages would be an inadequate remedy therefor. Accordingly, each party agrees that the other
parties shall be entitled to one or more injunctions enjoining any such breach and requiring
specific performance of this Agreement and consents to the entry thereof, in addition to any other
remedy to which such parties are entitled at law or in equity.
(d) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be enforceable against the parties actually executing such counterparts, and all of
which together shall constitute one instrument.
(e) Amendments. The provisions of this Agreement may be amended at any time and from
time to time, and particular provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and by the holders of a majority of the
number of shares of Registrable Securities outstanding as of the date of such amendment or waiver.
The Investors acknowledge that by the operation of this Section 5(e), the holders of a majority of
the outstanding Registrable Securities may have the right and power to diminish or eliminate all
rights of the Holders under this Agreement.
(f) Headings and Cross References. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement. Unless the context requires otherwise,
all cross references in this Agreement refer to sections and subsections of this Agreement.
(g) Severability. In the case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
(h) Entire Agreement. This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subject matter of this Agreement.
14
(i) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(SIGNATURE PAGES FOLLOW)
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
| THE COMPANY: XXXXX-XXXXXXXX ENERGY INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Chief Financial Officer | |||
| INVESTORS: BRIDAS INTERNATIONAL HOLDINGS LTD. |
||||
| By: | /s/ Giovanni Dell’Orto | |||
| Name: | Giovanni Dell’Orto | |||
| Title: | Attorney-in-fact | |||
| BRIDAS CENTRAL COMPANY, LTD. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Attorney-in-fact | |||
| ASSOCIATED PETROLEUM INVESTORS LIMITED |
||||
| By: | /s/ Giovanni Dell’Orto | |||
| Name: | Giovanni Dell’Orto | |||
| Title: | Attorney-in-fact | |||
16
EXHIBIT A
Investor Information
| Name | Address | |
| Bridas International Holdings Ltd. | Beaufort House, Road Town Tortola, British Virgin Island Facsimile: 0-000-000-0000 Attention: Xx. Xxxxxx Xxxxxx Xxxxxxxx |
|
With a concurrent copy (which shall not constitute notice) to: |
||
Interservices Management Company Limited Avda. Xxxxxxx X. Xxxx 0000, Xxxx 00 (X0000XXX) Xxxxxx Xxxxx, Xxxxxxxxx Facsimile: 54 -11- 4310-4598 Attention: Xx. Xxxxxxxxx Asurey |
||
| Bridas Central Company, Ltd. | Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxx Facsimile: 0-000-000-0000 Attention: Xx. Xxxxxxxx Dell’ Orto |
|
With a concurrent copy (which shall not constitute notice) to: |
||
Bridas Energy International SpA Xxx Xxxxxxxxxx 00 — 0x xxxxx 00000 Xxxxxx, Xxxxx Facsimile: 39-02- 69556617 Attention: Xxxxxx Xxxx Xxxxxxxx |
||
| Associated Petroleum Investors Limited | Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxxxxx , Xxxxxxx Xxxxxx Xxxxxx Facsimile: 0-000-000-0000 Attention: Xx. Xxxxxx Xxxxxxx Xxxx |
|
With a concurrent copy (which shall not constitute notice) to: |
||
Interservices Management Company Limited Avda. Xxxxxxx X. Xxxx 0000, Xxxx 00 (X0000XXX) Xxxxxx Xxxxx, Xxxxxxxxx Facsimile: 54 -11- 4312-9205 Attention: Xx. Xxxxxxxxx Xxxxx Xxxxxxxxxx |
