REGISTRATION RIGHTS AGREEMENT
Exhibit 10.1
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
March 6, 2007 by and between Basic Energy Services, Inc., a Delaware corporation (“Basic”),
the JetStar Stockholders’ Representative (solely in his capacity as such and not in his individual
capacity), and the individuals and entities listed on Exhibit A attached hereto who execute
one or more counterpart signature pages to this Agreement (the “Holders”).
RECITALS
A. This Agreement is entered into pursuant to that certain Agreement and Plan of Merger, dated
as of January 8, 2007 (the “Merger Agreement”), by and among Basic, JS Acquisition LLC, a
Delaware limited liability company and an indirect and wholly owned subsidiary of Basic
(“Merger Sub”), and JetStar Consolidated Holdings, Inc., a Delaware corporation
(“JetStar”).
B. The Merger Agreement provides that, subject to the terms and conditions of the Merger
Agreement, JetStar will be merged with and into Merger Sub in a statutory merger, with Merger Sub
as the surviving entity in the merger (the “Merger”) in which all issued and outstanding
shares of capital stock of JetStar will be converted into the right to receive, and will be
exchangeable for, cash and shares of Common Stock, par value $0.01 per share, of Basic (the
“Basic Common Shares”).
C. It is a condition to the closing of the transactions contemplated by the Merger Agreement
that Basic and the JetStar Stockholders’ Representative execute and deliver this Agreement.
Now, Therefore, in consideration of the foregoing recitals and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
Section 1. Definitions and References.
Unless otherwise defined herein, the capitalized terms in this Agreement shall have the same
meanings given to them in the Merger Agreement. For purposes of this Agreement, in addition to the
definitions set forth elsewhere herein, the following terms shall have the following respective
meanings:
“Affiliate” of a Holder shall mean a person who, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with such Holder, or the
spouse or children (or a trust exclusively for the benefit of a spouse and/or children) of such
Holder.
“Material Disclosure Event” means, as of any date of determination, any pending or imminent
event relating to Basic, which, in the good faith determination of the Board of Directors of Basic
(i) upon the advice of counsel, requires disclosure of material, non-public
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information relating to
such event in any registration statement in order to make such registration statement not
materially misleading, (ii) upon the advice of counsel, is otherwise not required to be publicly
disclosed at that time (e.g., on Forms 10-K, 8-K, or 10-Q) under applicable federal or state
securities laws, and (iii) if publicly disclosed at the time of such event, would have a material
adverse effect on the business, financial condition or prospects of Basic or would materially and
adversely affect a pending or proposed acquisition, merger, recapitalization, consolidation,
reorganization, financing or similar transaction, or negotiations with respect thereto.
“Prospectus” means the prospectus (including, without limitation, any preliminary prospectus,
any final prospectus, any free writing prospectus relating thereto and any prospectus that
discloses information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A (or any successor provision thereto) under the
Securities Act) included in the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of Registrable Securities covered
by the Shelf Registration Statement and by all other amendments and supplements to such prospectus,
including all material incorporated by reference in such prospectus and all documents filed after
the date of such prospectus by Basic under the Securities Exchange Act of 1934, as amended (the
"Exchange Act”), and incorporated by reference therein.
“Register,” “registered” and “registration” shall refer to a registration effected by
preparing and filing the Shelf Registration Statement in compliance with the Securities Act of
1933, as amended (the “Securities Act”) and the rules and regulations thereunder, and the
declaration or ordering of effectiveness of the Shelf Registration Statement by the United States
Securities and Exchange Commission (the “SEC”).
“Registrable Securities” shall mean (i) the Basic Common Shares issued to a Holder pursuant to
the Merger Agreement; and (ii) any Basic Common Shares or other Basic securities issued as (or
issuable upon the conversion or exercise of any warrant, right, option or other convertible
security which is issued as) a dividend or other distribution with respect to, or in exchange for,
or in replacement of, such shares. For purposes of this Agreement, any Registrable Securities
shall cease to be Registrable Securities when (a) the Shelf Registration Statement covering such
Registrable Securities has been declared effective by the SEC and such Registrable Securities have
been disposed of pursuant to such effective Shelf Registration Statement, (b) such Registrable
Securities are sold by a Holder in a transaction that is exempt from registration pursuant to Rule
144 under the Securities Act or a transaction in which the Holder’s rights under this Agreement are
not assigned, (c) such Registrable Securities may be sold under Rule 144(k) under the Securities
Act, or (d) such Registrable Securities have ceased to be outstanding.
“Shelf Registration Statement” means a “shelf” registration statement on Form S-3 (or if Form
S-3 is not available to Basic, on such other appropriate form) filed under the Securities Act
providing for the registration of, and the sale on a continuous or delayed basis by the Holders of,
the Registrable Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the SEC, filed by Basic pursuant to the provisions of Section 2 hereof,
including the Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
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Section 2. Registration.
(a) Basic shall, as promptly as practicable after the Effective Time, and in any event no
later than the later of (i) March 31, 2007, and (ii) 30 days after the Effective Time, file with
the SEC a Shelf Registration Statement relating to the offer and sale of the Registrable Securities
by the Holders from time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement (which plan of distribution shall
include a distribution by The SKM Equity Fund, III, L.P. and SKM Investment Fund (collectively, the
“Funds”) to their respective partners). Basic shall thereafter use its reasonable best
efforts to cause such Shelf Registration Statement to become effective under the Securities Act as
promptly as practicable.
(b) Basic shall use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective under the Securities Act (which shall include using such efforts to remove
any stop orders), subject to Section 4 hereof, in order to permit the Prospectus forming a part
thereof to be usable by Holders until the date (the “Termination Date”) that is the
earlier of (1) such time as none of the Basic Common Shares issued in the Merger continue to
constitute Registrable Securities, and (2) 24 months, plus the time periods of any Suspension
Periods (as defined below) imposed on the Holders by Basic, after the Effective Time.
Section 3. Piggy-Back Rights.
(a) Participation in Underwritten Offerings. If Basic proposes to sell any Basic
Common Shares in an underwritten public offering for cash pursuant to a registration statement
under the Securities Act prior to the Termination Date (a “Subject Offering”), then Basic
shall give not less than 10 Business Days’ advance written notice to the Holders of Registrable
Securities of its intention to do so. Such notice shall include an estimate of the aggregate
offering price of the total number of Basic Common Shares proposed to be offered. Upon the written
request of any of such Holders (a “Piggy-Back Request”), given within 5 Business Days
following the receipt by the Holders of any such written notice, Basic shall include in such
Subject Offering, subject to the proration provisions of Section 3(b), such numbers of Basic Common
Shares as shall be set forth in such Piggy-Back Request and that have not been withdrawn from such
Piggy-Back Request pursuant to Section 3(c) (the “Piggy-Back Shares”). The Piggy-Back
Shares shall be included in the Subject Offering by means of a Prospectus supplement relating to
the Shelf Registration Statement and the other registration statement(s) registering Basic Common
Shares pursuant to which such shares are being offered and sold in the Subject Offering. The number
of Subject Offerings in which Holders may participate shall not be limited prior to the Termination
Date.
(b) Priority. If the managing underwriter of the Subject Offering advises Basic in
writing that the inclusion of the Piggy-Back Shares in such offering would adversely affect the
price or success of the offering, and Basic notifies the requesting Holders in writing of such
advice, then Basic will be obligated only to include in the Subject Offering that number of
shares which, in the judgment of the managing underwriter, would not adversely affect the price or
success of the offering, (the “Maximum Number”) as follows and in the following order of
priority: (i) first, such number of Basic Common Shares as Basic intended to be sold by Basic,
(ii) second, if and to the extent that the number of Basic Common Shares to be sold under clause
(i) is less than the Maximum Number, such number of Basic Common Shares as the Holders and
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any
other holders of contractual piggy-back rights shall have intended to sell that, when added to the
number of Basic Common Shares to be sold under clause (i), is less than or equal to the Maximum
Number, which number of shares shall be allocated among such Holders and others pro rata based on
the number of Basic Common Shares originally requested to be included in such offering, and (iii)
other securities of Basic requested to be included in such registration.
(c) Withdrawal. Notwithstanding any request under this Section 3, any Holder may
elect in writing to withdraw its request for inclusion of its Piggy-Back Shares in any offering;
provided that (i) such request must be made prior to the public announcement of such
offering, or, if, as a result of the proration provisions of Section 3(b), the Holders shall not be
entitled to include all Piggy-Back Shares in a Subject Offering that the Holders have requested to
be included, such request must be made within 3 Business Days of being notified of such proration,
and (ii) such withdrawal shall be irrevocable and, after making such withdrawal, such Holder shall
no longer have any right to include Piggy-Back Shares in the Subject Offering as to which such
withdrawal was made.
(d) No Piggy-Back Rights if a Holder Not Subject to Standstill. Notwithstanding the
other provisions of this Section 3, Basic shall have no obligation to give notice to any Holder of
any Subject Offering or to include any of such Holder’s Registrable Securities in such Subject
Offering if Basic waives the application of the standstill provisions set forth in Section 4(b) as
to such Holder in writing (in form and substance reasonably satisfactory to the Jetstar
Stockholders’ Representative) with respect to such Subject Offering.
Section 4. Suspension and Standstill Periods.
(a) Suspension Period. Basic may, by notice in writing to the Holders, require the
Holders to suspend the use of any Prospectus included in the Shelf Registration Statement covering
the Registrable Securities, during the occurrence and continuance of a Material Disclosure Event
and until Basic has prepared and provided to the Holders and, if applicable, filed with the SEC,
any prospectus supplement or amendment to the Shelf Registration Statement required by Section 5
(such period, a “Suspension Period”). Notwithstanding the foregoing, no Suspension Period
shall exceed 90 days in any one instance and Basic may not exercise its rights set forth in the
immediately preceding sentence more than twice in any 12-month period. Each Holder agrees that,
upon receipt of notice from Basic of the occurrence of a Material Disclosure Event (a
“Suspension Notice”), such Holder will forthwith discontinue any disposition of Registrable
Securities pursuant to the Shelf Registration Statement or any public sale or distribution,
including pursuant to Rule 144 under the Securities Act, until the earlier of (i) the expiration of
the Suspension Period and (ii) such Holder’s receipt of a notice from Basic to the effect that such
Suspension Period has ended. Any Suspension Notice shall be accompanied by a certificate of the
President or any Vice President of Basic confirming the existence of the Material Disclosure Event,
but such notice need not specify the nature of the event giving rise to such Material Disclosure
Event. If so directed by Basic, such Holder will deliver to Basic (at
Basic’s expense) all copies, other than permanent file copies, then in such Holder’s
possession, of the most recent Prospectus covering such Registrable Securities at the time of
receipt of such Suspension Notice. In the event of a Suspension Notice, Basic shall, promptly
after such time as the related Material Disclosure Event no longer exists, take any and all actions
necessary or desirable to give effect to any Holders’ rights under this Agreement that may have
been affected by such notice.
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(b) Holder Standstill Period. Each Holder agrees not to, without the prior written
consent of the managing underwriter for any underwritten offering of (i) securities of Basic that
are the same as, or similar to, the Registrable Securities, or (ii) any securities convertible
into, or exchangeable or exercisable for, securities of Basic that are the same as, or similar to,
the Registrable Securities, effect any disposition (except for dispositions included in, or
pursuant to, such an underwritten offering) pursuant to any registration statement or any public
sale or distribution, including pursuant to Rule 144 under the Securities Act, of any Registrable
Securities or any securities convertible into, or exchangeable or exercisable for, any securities
of Basic that are the same as, or similar to, the Registrable Securities, during the period
commencing 10 Business Days prior to the date of the final prospectus relating to the offering of
such securities of Basic (to the extent timely notified in writing by Basic or the managing
underwriter) and ending on the 90th day after such date.
Section 5. Obligations of Basic. Basic shall:
(a) before filing the Shelf Registration Statement or any amendments thereto or any
supplements to the Prospectus, Basic will furnish to one counsel selected by the JetStar
Stockholders’ Representative draft copies of all such documents proposed to be filed at least seven
days prior to such filing, which documents will be subject to the reasonable review of the JetStar
Stockholders’ Representative and its agents and representatives; and not include in the Shelf
Registration Statement information concerning or relating to any Holder to which such Holder shall
reasonably object in writing (unless the inclusion of such information is required by applicable
law or the regulations of any national securities exchange to which Basic may be subject);
(b) cause the Shelf Registration Statement and any amendment thereto and any Prospectus, as of
the effective date of the Registration Statement and any amendment or supplement thereto, (i) to
comply in all material respects with the applicable requirements of the Securities Act and (ii) not
to contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that Basic shall have no
responsibility for information regarding the Holders provided to Basic in writing for inclusion in
the Shelf Registration Statement or any Prospectus;
(c) if reasonably requested by the JetStar Stockholders’ Representative, promptly prepare and
file with the SEC a Prospectus supplement or post-effective amendment to the Shelf Registration
Statement including such information as the JetStar Stockholders’ Representative reasonably
specifies should be included therein with respect to a Holder, including, without limitation,
information relating to the planned distribution of Registrable Securities, the number
of Registrable Securities being sold by a Holder, the name and description of a Holder, the
offering price of such Registrable Securities and any discount, commission or other compensation
payable in respect of the Registrable Securities being sold, the purchase price being paid therefor
to a Holder and information with respect to any other terms of the offering of the Registrable
Securities to be sold;
(d) prepare and file with the SEC any required filings under Rule 424 or 430A under the
Securities Act or any required supplements to the Prospectus used in connection with the Shelf
Registration Statement as may be necessary to comply with the provisions of the Securities
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Act with
respect to the disposition of all Registrable Securities covered by the Shelf Registration
Statement through the Termination Date;
(e) furnish without charge to each Holder such number of copies of the Shelf Registration
Statement and each amendment thereto, the Prospectus included in such Shelf Registration Statement
and the documents incorporated by reference into such Shelf Registration Statement or Prospectus,
as applicable in conformity with the requirements of the Securities Act, as such Holder may
reasonably request, in order to facilitate the public sale or other disposition of all or any of
the Registrable Securities by such Holder (Basic hereby consenting to the use in accordance with
all applicable laws of the Prospectus by the Holders in connection with the offering and sale of
the Registrable Securities covered by the Prospectus);
(f) use all commercially reasonable efforts to register or qualify the Registrable Securities
covered by the Shelf Registration Statement under the securities or Blue Sky laws of such
jurisdiction within the United States as shall be reasonably requested by the Holders for the
distribution of the Registrable Securities covered by the Shelf Registration Statement;
provided, that Basic shall not be required to qualify to do business in, to file a general
consent to service of process or to subject itself to material taxation in any jurisdiction wherein
it would not but for the requirements of this paragraph (c) be obligated to do so; and
provided, further, that Basic shall not be required to qualify such Registrable
Securities in any jurisdiction in which the securities regulatory authority requires any Holder to
submit any of such Holder’s Registrable Securities to the terms, provisions and restrictions of any
escrow, lockup or similar agreement(s) for consent to sell Registrable Securities in such
jurisdiction unless such Holders agrees to do so;
(g) comply with the provisions of the Securities Act applicable to Basic and reasonably
cooperate with the Holders with respect to the disposition of all Registrable Securities covered by
the Shelf Registration Statement in accordance with the intended method or methods of distribution
set forth therein;
(h) take all reasonable actions necessary to ensure that the Registrable Securities are and
continue to be listed on the New York Stock Exchange or such other market as may be the principal
market on which Basic Common Shares are quoted or listed;
(i) promptly notify the Holders, at any time when the Prospectus relating thereto is required
to be delivered under the Securities Act, upon discovery that, or upon the happening of any event
as a result of which, the Prospectus included in the Shelf Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and, at the request of any Holder,
promptly prepare and furnish to such Holder a reasonable number of copies of a supplement to
such Prospectus, or a revised Prospectus, as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading; provided, that in the event of a Material Disclosure Event, Basic shall be
entitled to defer preparing and furnishing such supplement or amendment until the end of the
applicable Suspension Period, at which time it shall so notify the Holders and shall prepare and
furnish to the Holders any such supplement or amendment as may then be required;
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(j) promptly notify the Holders (i) when a Prospectus supplement or post-effective amendment
to the Shelf Registration Statement is proposed to be filed and, with respect to a post-effective
amendment to the Shelf Registration Statement, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for amendments or
supplements to the Shelf Registration Statement or the Prospectus, (iii) of the issuance by the SEC
of any stop order suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose, or (iv) of the receipt by Basic of any notification
with respect to the suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
(k) provide a transfer agent and registrar and provide a CUSIP number for all such Registrable
Securities covered by the Shelf Registration Statement, in each case not later than the effective
date of the Shelf Registration Statement;
(l) cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing such Registrable Securities to be sold under the Shelf Registration
Statement, which certificates shall not bear any restrictive legends except as required by law; and
(m) if any Registrable Securities are sold pursuant to the Shelf Registration Statement, make
generally available to the Holders an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act no later than 30 days after the end of the 12-month period beginning with the
first day of Basic’s first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which earnings statement shall cover said 12-month period, and which
requirement will be deemed to be satisfied if Basic satisfies the requirements of Rule 158 under
the Securities Act and otherwise complies with all applicable rules and regulations of the SEC.
Section 6. Obligations of Holder. Each Holder shall:
(a) furnish to Basic such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of such securities as Basic shall reasonably request and as
shall be required in connection with the actions to be taken by Basic hereunder, which shall be a
condition precedent to the obligations of Basic to include Registrable Securities of a Holder in
the Shelf Registration Statement;
(b) promptly notify Basic of any changes in the information set forth in the Shelf
Registration Statement and the Prospectus or any document incorporated by reference therein
regarding such Holder or its plan of distribution, and shall not use, distribute or otherwise
disseminate any free writing prospectus, as defined in Rule 405 under the Securities Act in
connection with the sale of Registrable Securities under the Shelf Registration Statement, without
the prior consent of Basic;
(c) not disclose any material non-public information obtained by such Holder in connection
with this Agreement, and shall not use any such information as the basis for any market
transactions in the securities of Basic or its Affiliates, unless and until such information is
made generally available to the public; and
(d) following receipt of any supplement to any Prospectus, deliver such supplement or revised
Prospectus in connection with any offers or sales of Registrable Securities, and not
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deliver or use
any Prospectus not so amended, supplemented or revised. Following delivery of notice that Basic is
preparing and filing with the SEC a supplement to the Prospectus, the Holders shall not make any
further sales of Registrable Securities pursuant to the Shelf Registration Statement until the
Holders receive such supplement from Basic.
Section 7. Expenses.
All expenses incurred in connection with the registration pursuant to this Agreement,
excluding underwriters’ or brokers’ fees, discounts and commissions, but including, without
limitation, all registration, filing, listing, application or qualification fees and expenses, word
processing, duplicating and printers’ fees and expenses, messenger and delivery expenses, all fees
and expenses of complying with state securities or Blue Sky laws, the fees and disbursements of
counsel for Basic, the fees and disbursements of independent certified public accountants of Basic,
and reasonable fees and expenses of not more than one counsel, designated by the JetStar
Stockholders’ Representative, for the Holders (as a group) and the JetStar Stockholders’
Representative, shall be paid by Basic. Each Holder shall bear and pay all underwriting fees,
discounts and commissions and brokerage fees, any out-of-pocket expenses of such Holder, including
any fees and expenses of counsel to such Holder (other than as set forth in the prior sentence),
and any capital gains, income or transfer taxes applicable to securities offered for the account of
such Holder in connection with any registrations, filings and qualifications made pursuant to this
Agreement.
Section 8. Transfer of Registration Rights.
The registration rights of a Holder under this Agreement with respect to any Registrable
Securities shall not be transferred or assigned except (i) to an Affiliate of such Holder or (ii)
to a partner of a Fund in connection with a distribution of Registrable Securities by such Fund to
its partners, but only if such distribution is made more than four months after the Effective Time
and at a time when the Shelf Registration Statement is not effective. It shall be a condition to
any such transfer or assignment of such registration rights to an Affiliate that (i) such Holder
shall give Basic written notice prior to the time of such transfer stating the name and address of
the transferee and identifying the securities with respect to which the rights under this Agreement
are being transferred; (ii) such transferee shall agree in writing, in form and substance
reasonably satisfactory to Basic, to be bound as a Holder by the provisions of this Agreement; and
(iii) immediately following such transfer the further disposition of such securities by such
transferee is restricted under the Securities Act; and provided, further, that no Holder
shall be entitled to
designate any such transferee if the Registrable Securities would continue to be Registrable
Securities for a period longer than would be the case in the hands of such Holder.
Section 9. Indemnification.
In the event any Registrable Securities is included in the Shelf Registration Statement
under this Agreement:
(a) Indemnification by Basic. Basic shall indemnify and hold harmless each Holder,
such Holder’s directors and officers, any selling agent selected by such Holder with respect to the
offering of such Registrable Securities, including underwriters (as defined in the Securities Act),
the JetStar Stockholders’ Representative and each person, if any, who controls such Holder or
selling agent within the meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which they may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or proceedings in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement of any material fact
contained in the Shelf Registration Statement or any preliminary or final Prospectus
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included
therein (including any free-writing prospectus filed under Rule 424 under the Securities Act or any
amendments or supplements thereto) or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein, in the case of any Prospectus, in light of the circumstances under which they
were made, not misleading; and Basic shall reimburse each such Holder, such Holder’s directors and
officers, such selling agent or controlling person, and the JetStar Stockholders’ Representative
for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; 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 action if such settlement is effected without the
consent of Basic (which consent shall not be unreasonably withheld, conditioned or delayed);
provided, further, that Basic shall have no obligation to provide indemnification hereunder
for any such loss, claim, damage, liability or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement, preliminary or final Prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished by or on behalf of
any such Holder or such Holder’s directors and officers, participating person or controlling
person, expressly for use in connection with such registration. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of any such Holder, such
Holder’s directors and officers, participating person or controlling person, and shall survive the
transfer of such securities by such Holder and any termination of this Agreement.
(b) Indemnification by the Holders. Each Holder severally and not jointly shall
indemnify and hold harmless Basic, each of its directors and officers, each person, if any, who
controls Basic within the meaning of Section 15 of the Securities Act, and each agent and any
underwriter (within the meaning of the Securities Act) for Basic and the JetStar Stockholders’
Representative against any losses, claims, damages or liabilities, joint or several, to which Basic
or any such director, officer, controlling person, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
proceedings in respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Shelf Registration Statement or any preliminary
or final Prospectus included therein (including any free-writing prospectus filed under Rule
424 under the Securities Act or any amendments or supplements thereto) or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the case of any Prospectus, in light of the
circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in the Shelf Registration Statement, preliminary or final Prospectus, or amendments or
supplements thereto, in reliance upon and in conformity with written information furnished by or on
behalf of such Holder expressly for use in connection with such registration; and each such Holder
shall reimburse any legal or other expenses reasonably incurred by Basic or any such director,
officer, controlling person, agent, underwriter or the JetStar Stockholders’ Representative in
connection with investigating or defending any such loss, claim, damage, liability or action;
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 action if such
settlement is effected without the consent of such Holder (which consent shall not be unreasonably
withheld, conditioned or delayed); provided, further, that the aggregate liability of each
Holder hereunder shall be limited to an amount equal to the net proceeds (after deducting
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any
underwriting or broker’s discounts or commissions but before deducting expenses) received by such
Holder from the sale of Registrable Securities covered by such Shelf Registration Statement.
(c) Notice of Claims, Etc. Promptly after receipt by any person entitled to indemnity
under Section 9(a) or (b) hereof, of notice of the commencement of any action or proceeding
involving a claim referred to in such sections, such indemnified party shall, if indemnification is
sought against an indemnifying party under this Section 9, notify the indemnifying party in writing
of the commencement thereof and the indemnifying party shall have the right to participate in and
assume the defense thereof with counsel selected by the indemnifying party and reasonably
satisfactory to the indemnified party; provided, however, that an indemnified party shall
have the right to retain its own counsel, with all fees and expenses thereof to be paid by such
indemnified party (unless such indemnified party reasonably objects to such assumption on the
grounds that there may be defenses available to it that are different from or in addition to the
defenses available to such indemnifying party, in which event the indemnified party shall have the
right to control its defense and shall be reimbursed by the indemnifying party for the expenses
incurred in connection with retaining one separate counsel). The failure to notify an indemnifying
party promptly of the commencement of any such action, if and to the extent materially prejudicial
to its ability to defend such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 9, but the omission so to notify the indemnifying party will
not relieve it of any liability that it may have to any indemnified party otherwise than under this
Section 9. Anything in this Section 9(c) to the contrary notwithstanding, an indemnifying party
shall not be liable for the settlement of any action effected without its prior written consent
(which consent shall not unreasonably be withheld, conditioned or delayed), but if settled with the
prior written consent of the indemnifying party, or if there shall be a final judgment adverse to
the indemnified party, the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior consent of the indemnified party, consent to entry of any judgment or
enter into any settlement or compromise, 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), which (i) does not include as a term thereof the
unconditional release of the indemnified party from all liability in respect of such action or
claim or (ii) includes a statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) Contribution. To the extent any indemnification by an indemnifying party is
prohibited or limited by law or held by a court of competent jurisdiction to be unavailable, 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 or
liabilities in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified party in connection with the actions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative fault
of such indemnifying party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement of
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 party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
10
action. The amount paid or payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or proceeding. The parties
hereto agree that it would not be just and equitable if contribution pursuant to this Section 9(d)
were determined by pro rata allocation or by any other method of allocation which does not take
account of 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
fraudulent misrepresentation.
(e) Miscellaneous. The amount payable by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages, expenses and liabilities referred to
in this Section 9 shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim, payable as the same are incurred. The
indemnification and contribution required by this Section 9 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred. The provisions of this Section 9 will
remain in full force and effect, regardless of any investigation made by or on behalf of any Holder
or Basic or any of the officers, directors or controlling persons referred to in this Section 9, or
the JetStar Stockholders’ Representative, and will survive the sale by the Holders of Registrable
Securities.
Section 10. Rule 144. With a view to making available the benefits of certain rules
and regulations of the SEC that may at permit the sale of the Registrable Securities to the public
without registration, Basic agrees to use its commercially reasonable efforts to file with the SEC
in a timely manner all reports and other documents required of Basic under the Securities Exchange
Act of 1934 until the Termination Date.
Section 11. General Provisions.
(a) Notices. Any notice, request or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if personally delivered,
transmitted by facsimile, delivered by nationally recognized overnight courier or if deposited in
the U.S. mail by registered or certified mail, return receipt requested, postage prepaid. Notices
shall be delivered at the addresses set forth below such party’s name on the signature pages
hereto. Any party hereto may by notice so given change its address or facsimile number for future
notices hereunder. Notice shall conclusively be deemed to have been given when personally
delivered or on the third Business Day after deposit in the mail in the manner set forth above.
(b) Entire Agreement; Independence of Obligations. This Agreement constitutes and
contains the entire agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings,
duties or obligations between the parties respecting the subject matter hereof.
11
(c) Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware without regard to conflicts of law principles.
(d) Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement
and the balance of this Agreement shall be interpreted as if such provision(s) were so excluded and
shall be enforceable in accordance with its terms.
(e) Third Parties. Except as provided in Section 9, nothing in this Agreement,
express or implied, is intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this Agreement.
(f) Successors and Assigns. Subject to the provisions of Section 8, the provisions of
this Agreement shall inure to the benefit of, and shall be binding upon, the successors and
permitted assigns of the parties hereto.
(g) Captions. The captions to sections of this Agreement have been inserted for
identification and reference purposes only and shall not be used to construe or interpret this
Agreement.
(h) Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which together shall constitute one instrument.
Delivery of an executed counterpart of this Agreement by facsimile shall be effective to the
fullest extent permitted by applicable law.
(i) Costs and Attorneys’ Fees. In the event that any action, suit or other proceeding
is instituted concerning or arising out of this Agreement or any transaction contemplated
hereunder, the prevailing party shall recover all of such party’s costs and attorneys’ fees
incurred in each such action, suit or other proceeding, including any and all appeals or petitions
therefrom.
[signature page follows]
12
In Witness Whereof, the parties hereto have
executed this Registration Rights Agreement as of the date first above written.
| Basic Energy Services, Inc. |
|||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxxxxx | ||||
| Title: | Vice President |
||||
|
Basic Energy Services, Inc. 000 Xxxx Xxxxxxxx, Xxxxx 000 Xxxxxxx, Xxxxx 00000 Facsimile: (000) 000-0000 Attn: Xxxxxxx X. Xxxxxxx, Chief Executive Officer |
|||||
With a copy to:
Xxxxxxx Xxxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxx and Xxxx Xxxxx
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxx and Xxxx Xxxxx
| /s/ Xxxxx X. Xxxxxxx | ||||
| Xxxxx X. Xxxxxxx, solely in his capacity as the | ||||
| JetStar Stockholders' Representative and not in his individual capacity 0000 XxXxxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 Facsimile: (000) 000-0000 |
||||
With a copy to:
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx
[Signature
Page to Registration Rights Agreement]
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| ELMOW HOLDINGS, INC. (formerly known as Rio Pumping Services, Inc.) |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
[Signature
Page to Registration Rights Agreement]
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| ANDERCO, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Manager | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| XXXXXXXX RESOURCES, INC . |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| DURANGO ENTERPRISES, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Member | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| IUKA CARMI DEVELOPMENT, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Manager/Member | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| JAYHAWK PETRO-VENTURES, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Manager/Member | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| PERSHING, LLC Custodian for Thornton E. Xxxxxxxx XXX |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||
| Title: | Owner | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| XXXXXXXX OIL & CATTLE, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Manager | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| SUNFLOWER BANK, NA, Custodian for Xxxxxxx X. Xxxxxxxx XXX |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Trust Officer | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| WHITSUNDAY ENTERPRISES, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxx | |||
| Title: | Manager | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| XPLORATION SERVICES, INC. |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | President | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxx Xxxxxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
In Witness Whereof, the parties hereto have executed this Registration Rights
Agreement as of the date first above written.
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
