Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
By and Between
R&B FALCON CORPORATION
AND
BSI STOCKHOLDERS
Dated as of January 1, 1998
TABLE OF CONTENTS
1. Registration Under Securities Act
1.1 Registration on Request
1.2 Registration Procedures
1.3 Preparation: Reasonable Investigation
1.4 Qualification to Obligations under Registration Covenants
1.5 Indemnification
2. Definitions
3. Amendments and Waivers
4. Notices
5. Remedies
6. Severability
7. Entire Agreement
8. Descriptive Headings
9. Governing Law
10. Counterparts
This REGISTRATION RIGHTS AGREEMENT, dated as of January 1, 1998, is
entered by and between R&B Falcon Corporation, a Delaware corporation (the
"Company"), and the Stockholders of BSI Workover and Drilling, Inc.,
Aransas Drilling and Workover, Inc., X. Xxxxxx Xxxxxxxxxx, Xxxx Xxxxxxxxxxx
XxXxxxxxxx, Xxxxxxxxx Xxxxx XxXxxxxxxx, Xxxxxx X. Xxxxx, Xxxxx XxXxxxxxxx
X'Xxxxxx, Xxxx Regard, J. Xxxxx Xxxxx and Xxxx X. Xxxxxxxxxx, Xx.
(collectively referred to as the "XxXxxxxxxx Group").
This Agreement is being entered into in connection with an agreement
of merger (the "Merger Agreement") of even date herewith among the Company;
BSI Workover and Drilling, Inc., a Louisiana corporation ("BSI"), and BSI
Drilling and Workover, Inc., a Louisiana corporation and wholly owned
subsidiary of BSI, ("BSI Subsidiary") and the XxXxxxxxxx Group, pursuant to
which BSI will merged with and in to Falcon Workover Company Inc. d/b/a
Blake Workover and Drilling Company ("Falcon Workover"), a Delaware
corporation and wholly subsidiary of company and the common stock of the
BSI Subsidiary, all of which is owned by BSI, will be converted into common
stock of the company. Capitalized terms used herein but not otherwise
defined shall have the meanings given to them in Section 2 hereof.
1. Registration Under Securities Act.
1.1 Registration on Request.
(a) Request. At any time after the execution and Closing
of the Merger Agreement, upon the written request of one or more holders
(the "Initiating Holders") of Registrable Securities representing not less
than 60% of the Registrable Securities that the Company effect registration
the Securities Act of all or part of such Initiating Holders Registrable
Securities, the Company promptly will give written notice of such requested
registration to all registered holders of Registrable Securities, and
thereupon the Company will use its best efforts to effect, at the earliest
possible date, the registration under the Securities Act of (i) Registrable
Securities which the Company which has been so requested to register by
such Initiating Holders, and (ii) all other Registrable Securities which
the Company has been requested to register by the holders thereof (such
holders together with the Initiating Holders hereinafter are referred as to
the "Selling Holders") by written request given to the Company within
thirty (30) days after giving of such written notice by the Company, all to
the extent requisite to permit the disposition of the Registrable
Securities so to be registered.
(b) Registration Statement Form. Registrations under this
Section 1.1 shall be on such appropriate registration form of the
Commission as shall be reasonably selected by the Company.
(c) Effective Registration. A registration requested
pursuant to Section 1.1 shall not be deemed to have been effected unless a
registration statement with respect thereto has become effective and
remained effective in compliance with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such registration statement for a period of at least 120 days or until the
distribution of all of the Registrable Securities so registered.
(d) Limitations on Registration on Request. Notwithstanding
anything in this Section 1.1 to the contrary, the Company shall not be
required to take any action to file a registration statement pursuant to
this Section 1.1: (i) after the Company has effected one such
registration; or (ii) in the event that Company does not receive a written
a request from the Initiating Holders to effect a registration hereunder
within one (1) calendar year of the execution of the Merger Agreement, this
Registration Rights Agreement shall terminate and the Initiating Holders
shall have no rights or remedies under this Agreement.
(e) Expenses. The Company will pay all Registration
Expenses in connection with any registration requested pursuant to this
Section 1.1.
1.2 Registration Procedures. If and whenever the Company is required
to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 1.1 the Company will, as
expeditiously as possible, use its best efforts to:
(i) prepare and (within 30 days after the end of the period
within which requests for registration may be given to the Company or in
any event as soon thereafter as practical) file with the Commission the
requisite registration statement to effect such registration and thereafter
use its best efforts to cause such registration statement to become
effective;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such registration statement for a period of at least 120 days;
(iii) furnish to each seller of Registrable Securities
covered by such registration statement such number of conformed copies of
such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request;
(iv) register or qualify all Registrable Securities and other
securities covered by such registration statement under such other
securities or blue sky laws of such States of the United States of America
where an exemption is not available and as the sellers of Registrable
Securities covered by such registration statement shall reasonably request;
keep such registration or qualification in effect for so long as such
registration statement remains in effect; and take any other action which
may be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the securities to be
sold by such sellers, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this subdivision (iv) be obligated to be so qualified or to
consent to general service of process in any such jurisdiction;
(v) cause all Registrable Securities covered by such
registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to the Company and counsel to the seller or
sellers of Registrable Securities to enable seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) notify each seller of Registrable Securities covered by such
registration statement at any time when a 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 such 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
not misleading, in the light of the circumstances under which they were
made, and at the request of any such seller promptly prepare and furnish to
it a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of fact or omit to state a material fact required to be stated
thereof or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(vii) otherwise comply with all applicable rules and
regulations of the Commission, and promptly furnish to each such seller of
Registrable Securities a copy of any amendment or supplement to such
registration statement or prospectus;
(viii) keep each Selling Holder advised in writing as to the
initiation and progress of any registration under Section 1.1;
(ix) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration; and
(x) list all Registrable Securities covered by such registration
statement on any national securities exchange on which Registrable
Securities of the same class and, if applicable, series, covered by such
registration statement are then listed or on the New York Stock Exchange if
the Registrable Securities are reported thereon.
The Company may require each Seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as is
required by law or the Commission to be included within the registration
statement or as the Company may from time to time reasonably request in
writing.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the
Company of the happening of any event of the kind described in subdivision
(vi) of this Section 1.2, such holder will forthwith discontinue such
holder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (vi) of this Section 1.2 and, if so directed by
the Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's possession
of the prospectus relating to such Registrable Securities current at the
time of receipt of such notice.
1.3 Preparation: Reasonable Investigation. In connection with
the preparation and filing of any registration statement under the
Securities Act pursuant to this Agreement, the Company (i) shall give the
holders of Registrable Securities registered under such registration
statement, their underwriters, if any, and their respective counsel and
accountants the reasonable opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, (ii)
shall give each of them such reasonable access to its books and records and
such opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such holders' and such
underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act and (iii) shall promptly notify
the registered holder of the Registrable Securities and their counsel of
any stop order issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to
remove it if entered.
1.4 Qualification to Obligations under Registration Covenants.
The Company shall be entitled to postpone for a reasonable period of time
(but not exceeding 60 days) the filing of any registration statement
otherwise required to be prepared and filed by it pursuant to Section 1.1
if the Company determines, in its reasonable judgment that such
registration and offering would interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the
Company or any of its affiliates and promptly give the holders of
Registrable Securities requesting registration thereof pursuant to Section
1.1 written notice of such postponement, containing a general statement of
the reasons for such postponement and an approximation of the anticipated
delay. If the Company shall so postpone the filing of a registration
statement, holders of Registrable Securities requesting registration
thereof pursuant to Section 1.1 and representing not less than 60% of the
initiating holders shall have the right to withdraw the request for
registration by giving written notice to this Company within 30 days after
receipt of the notice of postponement, and in the event of such withdrawal,
such request shall not be counted for purposes of the request for
registration to which holders of the Registrable Securities are entitled
pursuant to Section 1.1 hereof.
1.5 Indemnification.
(a) Indemnification by the Company. The Company will, and
hereby does indemnify and hold harmless, in the case of any registration
statement filed pursuant to Section 1.1, each seller of any Registrable
Securities covered by such registration statement and each other Person, if
any, who controls such seller within the meaning of the Securities Act, and
their respective directors, officers, partners, employees and affiliates
against any losses, claims, damages or liabilities, joint or several, to
which such seller or any such director, officer, partner, employee,
affiliate or controlling person may become subject under the Securities Act
or otherwise, including, without limitation, the reasonable fees and
expenses of legal counsel, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such seller and each such director, officer, partner, employee,
affiliate and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, liability, action or proceeding; provided, that the
Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such registration
statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
information furnished to the Company by or on behalf of such seller for use
in the preparation thereof. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, employee, affiliate, partner or controlling
Person and shall survive the transfer of such securities by such seller.
(b) Indemnification by the Sellers. As a condition to including
any Registrable Securities in any registration statement, the Company shall
have received an undertaking satisfactory to it from the prospective seller
of such Registrable Securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this
Section 1.5) the Company, and each manager or director of the Company, each
officer of the Company and each other Person who controls the Company
within the meaning of the Securities Act, with respect to any statement or
alleged 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 information furnished to the
Company by such seller for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. 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 or controlling person and shall survive the
transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
1.5, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the 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 the preceding subdivisions of
this Section 1.5, 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, the indemnifying party
shall be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that it may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election 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 other than reasonable costs of investigation, provided, however,
that if the indemnified party reasonably believes it is advisable for it to
be represented by separate counsel because there exists a conflict of
interest between its interests and those of the indemnified party which may
not be available to the indemnifying party, or if the indemnifying party
shall fail to assume responsibility for such defense, the indemnified party
may retain counsel satisfactory to it and the indemnifying party shall pay
all reasonable fees and expenses of such counsel. No indemnifying party
shall be liable for any settlement of any action or proceeding effected
without its written 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 to such claim or litigation or which
requires action other than the payment of money by the indemnifying party.
(d) Contribution. If the indemnification provided for in this
Section 1.5 shall for any reason be held by a court to be unavailable to an
indemnified party under subparagraph (a) or (b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under subparagraph (a) or (b) hereof,
the indemnified party and the indemnifying party under subparagraph (a) or
(b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the
prospective sellers of Registrable Securities covered by the registration
statement which resulted in such loss, claim, damage or liability, or
action in respect thereof, with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and such prospective sellers from
the offering of the securities covered by such registration statement. No
Person guilty of fraudulent misrepresentations (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. Such
prospective sellers' obligations to contribute as provided in this
subparagraph (d) are several in proportion to the relative value of their
respective Registrable Securities covered by such registration statement
and not joint. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be
unreasonably withheld or delayed.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 1.5
(with appropriate modifications) shall be given by the Company and each
seller of Registrable Securities with respect to any required registration
or other qualification of securities under any federal or state law or
regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 1.6 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.
2. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include a reference to the comparable section, if any, of
any such similar Federal statute.
"Initiating Holder" is defined in Section 1.1.
"Person" means any individual, corporation, limited liability
company, partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Registrable Securities" means (i) 204,900 shares of the Common
Stock of the Company issued to the XxXxxxxxxx Group pursuant to the Merger
Agreement and (ii) any related Registrable Securities. As to any
particular Registrable Securities, once issued such securities shall cease
to be Registrable Securities when (a) a registration statement with respect
to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (b) they shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
public distribution of them shall not require registration of them under
the Securities Act, or (d) they shall have ceased to be outstanding.
"Related Registrable Securities" means any securities of the
Company issued or issuable with respect to the Registrable Securities to
the XxXxxxxxxx Group by way of the Merger Agreement or by way of a dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise.
"Securities Act" means the Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to
a particular section of the Securities Act of 1933 shall include a
reference to the comparable section, if any, of any such similar statute.
"Selling Holder" is defined in Section 1.1.
3. Amendments and Waivers. This Agreement may be amended with the
written consent of the Company and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by
it, only if the Company shall have obtained the written consent to such
amendment, action or omission to act of the holder or holders of at least
60% of the Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 3, whether or not
such Registrable Securities shall have been marked to indicate such
consent.
4. Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telex,
telegram, telecopier, reputable courier service or personal delivery:
(a) if to XxXxxxxxxx Group, addressed to J. Xxxxx XxXxxxxxxx in
the manner set forth in the Merger Agreement, or at such other address as
he shall furnish to the Company in writing;
(b) if to any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in writing,
or, until any such other holder so furnishes to the Company and address,
then and to at the address of the last holder of such Registrable
Securities who has furnished an address to the Company; or
(c) if to the Company, addressed to it in the manner set forth
in the Merger Agreement, or at such other address as the Company shall have
furnished to each holder of Registrable Securities at the time outstanding.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day
after being sent by reputable courier service; three business days after
being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; and when receipt is acknowledged, if telecopied.
5. Remedies. Each holder of Registrable Securities, is entitled to
exercise all rights granted by law, including recovery of damages; such
rights not to extend to incidental or consequential damages.
6. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein
shall not be in any way impaired thereby.
7. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
8. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
9. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
laws of the State of Delaware applicable to agreements made and to be
performed entirely within such State.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
R&B FALCON CORPORATION
BY: _____________________________
NAME: _____________________________
TITLE: _____________________________
THE XxXXXXXXXX GROUP
ARANSAS DRILLING & WORKOVER, INC.
BY: ______________________________
NAME: ______________________________
TITLE: ______________________________
______________________________________
X. XXXXXX XXXXXXXXXX
______________________________________
XXXX XXXXXXXXXXX XxXXXXXXXX
______________________________________
XXXXXXXXX XXXXX XxXXXXXXXX
______________________________________
XXXXXX X. XXXXX
______________________________________
XXXXX XxXXXXXXXX X'XXXXXX
______________________________________
XXXX XXXXXX
______________________________________
J. XXXXX XXXXX
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XXXX X. XXXXXXXXXX, XX.
