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EXHIBIT 10.3
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BAYARD DRILLING TECHNOLOGIES, INC.
ANADARKO DRILLING COMPANY
X.X. XXXXXX DRILLING, INC.
XXXX XXXXXX ENERGY EQUIPMENT RESOURCE, INC.
GRUPO DE HERCULES, LTD.
XXXXXX-XXXXXX PARTNERSHIP, LTD.
ENERGY SPECTRUM PARTNERS LP
CHESAPEAKE ENERGY CORPORATION
APRIL 30, 1997
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BAYARD DRILLING TECHNOLOGIES, INC.
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of April 30, 1997, is made by and among, Bayard Drilling Technologies, Inc.,
a Delaware corporation (the "Company"), Anadarko Drilling Company, an Oklahoma
general partnership ("Anadarko"), X.X. Xxxxxx Drilling, Inc., an Oklahoma
corporation ("Xxxxxx Drilling"), Xxxx Xxxxxx Energy Equipment Resource, Inc., a
Texas corporation ("Xxxxxx Energy"), Grupo de Hercules, Ltd., a Texas limited
partnership ("Grupo"), Xxxxxx-Xxxxxx Partnership, Ltd., a Texas limited
partnership ("M-O Partnership" and, together with Xxxxxx Drilling, Xxxxxx
Energy and Grupo, the "Xxxxxx Companies"), Energy Spectrum Partners LP, a
Delaware limited partnership ("Energy Spectrum"), and Chesapeake Energy
Corporation, an Oklahoma corporation ("Chesapeake") (collectively, the
"Investors").
WITNESSETH:
WHEREAS, the Company and certain of the Investors are parties
to that certain Master Agreement, dated as of November 26, 1996 (the "Master
Agreement"), pursuant to which such Investors acquired interests in the
Company, and/or that certain Securities Purchase Agreement, dated as of April
30, 1997 (the "New Purchase Agreement"), by and among the Company, Chesapeake
and Energy Spectrum;
WHEREAS, the Company and certain of the Investors entered
into, among other agreements, that certain Registration Rights Agreement, dated
as of December 10, 1996 (the "Original Registration Rights Agreement"),
pursuant to which the Company granted to the Investors party thereto certain
registration rights with respect to shares of common stock of the Company owned
by them; and
WHEREAS, the Company and the Investors desire to enter into
this Agreement to amend and restate the Original Registration Rights Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the mutual benefits to be
gained by the performance thereof and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and accepted, the
parties hereto hereby agree as follows:
SECTION 1. Definitions. For purposes of this Agreement,
the terms set forth below shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Common Stock Equivalent" means securities convertible into,
or exchangeable or exercisable for, shares of Common Stock, including
without limitation (i) the option granted under that certain Option
Agreement, dated as of December 10, 1996, by and between the Company
and Chesapeake (the "Option Agreement") and (ii) the New Warrants.
"Demand Registration" has the meaning set forth in Section
2(a) hereto.
"Demand Registration Request" has the meaning set forth in
Section 2(a) hereto.
"Holdback Agreements" has the meaning set forth in Section 4
hereto.
"Indemnified Party" has the meaning set forth in Section 7(c)
hereto.
"Issuer Indemnified Party" has the meaning set forth in
Section 7(c) hereto.
"Master Agreement" has the meaning set forth in the Recitals
hereto.
"New Purchase Agreement" has the meaning set forth in the
Recitals hereto.
"New Warrants" means (i) the Series A Warrants exercisable for
shares of Common Stock at an exercise price of $0.01 per share, issued
or issuable by the Company pursuant to the New Purchase Agreement and
(ii) the Series B Warrants exercisable for shares of Common Stock at
an exercise price of $15.00 per share, issued or issuable by the
Company pursuant to the New Purchase Agreement.
"Person" means an individual, partnership, corporation,
limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization or governmental entity or
any department, agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section
3 hereto.
"Qualified IPO" means (i) one or more underwritten public
offerings of Common Stock pursuant to one or more effective
registration statements filed under the Securities Act, resulting in
an aggregate of at least $25 million of net proceeds, after deducting
underwriting discounts and commission and other expenses, to the
Company or (ii) any merger, consolidation or other business
combination transaction that results in any equity securities of the
Company being registered under Section 12 of the Securities Exchange
Act.
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"Registrable Shares" means at any time any shares of Common
Stock owned by the Investors, whether acquired on the date hereof or
hereafter acquired, including without limitation, any shares of Common
Stock issuable upon the conversion, exchange or exercise of (i) Common
Stock Equivalents owned by the Investors, (ii) the option granted
under the Option Agreement, and (iii) the New Warrants; provided,
however, that Registrable Shares shall not include any shares the sale
of which has been registered pursuant to a registration statement
filed under the Securities Act which has been declared effective or
which may be otherwise transferred without restriction (including
volume restrictions) under Rule 144 or any similar successor rule or
provision then in force.
"Registration Expenses" has the meaning set forth in Section 6
hereto.
"Requesting Holders" has the meaning set forth in Section 2(a)
hereto.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations
promulgated thereunder, all as the same may be in effect from time to
time.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rules and
regulations promulgated thereunder, all as the same may be in effect
from time to time.
"Selling Holder" means a holder who is selling Registrable
Shares pursuant to a registration statement.
"Selling Indemnified Party" has the meaning set forth in
Section 7(a) hereto.
"Share Value" means (i) prior to a Qualified IPO, the book
value per share of Common Stock, as determined by dividing Total
Equity as of the date of the most recent quarterly or year-end
financial statements of the Company by the total number of shares of
Common Stock issued and outstanding as of the date of such financial
statements, assuming the exercise of all options, rights, warrants and
other securities convertible into or exchangeable or exercisable for
shares of Common Stock and (ii) after a Qualified IPO, the average
market price per share of Common Stock on the principal national
securities exchange or quotation system on which the Common Stock is
then traded or quoted for the ten day trading period ending on the day
prior to the determination date.
"Total Equity" means the sum of the par value, capital surplus
and retained earnings attributable to the Common Stock, other than
shares of Common Stock held in treasury of the Company, as determined
in accordance with United States generally accepted accounting
principles plus the paid in value of any preferred stock or other
security that is convertible into Common Stock to the extent that such
preferred stock or other security is a Common Stock Equivalent.
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SECTION 2. Demand Registration.
(a) Requests for Registration. Subject to the
limitations set forth in this Section 2, at any time the holder or
holders of Registrable Shares may request the Company to register
under the Securities Act all or any part of the Registrable Shares
held by such holder or holders (a "Demand Registration Request").
Within 10 days of receipt by the Company of a Demand Registration
Request, the Company shall give written notice of such request to all
other holders of Registrable Shares. Such holders shall have the right
to join the Demand Registration Request by delivery of written notice
to the Company of such intention, which notice shall include the
number of Registrable Shares that each such additional holder intends
to have the Company register in response thereto. All holders of
Registrable Shares that participate in any such demand registration
shall be referred to herein as "Requesting Holders".
(b) Registration by the Company. Unless the
Company has the right to refuse registration pursuant to Section 2(c)
hereof, the Company shall file a registration statement under the
Securities Act covering the Registrable Shares which are the subject
of any Demand Registration Request as soon as practicable after
receipt by the Company of any such Demand Registration Request (each,
a "Demand Registration"); provided, however, that if (i) in the good
faith judgment of the Board of Directors of the Company, such
registration would be seriously detrimental to the Company (or any
proposed acquisition or disposition of assets or properties) and the
Board of Directors of the Company concludes, as a result, that it is
essential to defer the filing of such registration statement at such
time, and (ii) the Company shall furnish all Requesting Holders a
certificate signed by the President of the Company stating that, in
the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company for such registration
statement to be filed in the near future and that it is, therefore,
essential to defer the filing of such registration statement, then the
Company shall have the right to defer such filing for the period
during which such disclosure would be seriously detrimental, provided,
however, that the Company may not defer the filing of a registration
statement for a period of more than 120 days after receipt of the
Demand Registration Request of the Requesting Holders, and, provided
further, that the Company shall not defer its obligation in this
manner more than once in any twelve-month period and shall give
written notice to the Requesting Holders immediately after the reason
for deferring the filing of the registration statement has ceased to
exist. The Company shall not be required to register any shares of
Registrable Securities during any period in which it has exercised its
deferral right as aforesaid.
(c) Demand Registration Limitations. The demand
registration rights set forth in this Section 2 may be exercised only
in accordance with the following limitations:
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(i) The holders of Registrable
Securities shall have the right to exercise demand
registration rights under this Section 2 only after the
earlier to occur of (x) a Qualified IPO, or (y) January 1,
2000.
(ii) The Company shall not be required to
make any Demand Registrations pursuant to this Section 2
unless the aggregate Share Value of all Registrable Shares
proposed to be registered in connection therewith shall equal
or exceed $20 million (this clause (ii) shall not apply if
clause (iv) below is applicable to a Demand Registration).
(iii) The Company shall not be required to
file more than three Demand Registrations with the Commission
pursuant to which the Company is required to register any
Registrable Shares on Form S-1 or Form S-2 promulgated under
the Securities Act.
(iv) The Company shall be required to
file any and all Demand Registrations with the Commission
pursuant to which the Company is qualified to register any
Registrable Shares on Form S- 3 promulgated under the
Securities Act, provided, however, that any such Demand
Registration permitted under this Section 2(c)(iv) must
include Registrable Shares constituting at least 5% of the
outstanding shares of Common Stock.
(v) Provided the Company is actively
employing in good faith all reasonable efforts to cause such
registration statements to become effective, the Company shall
not be required to make any Demand Registration pursuant to
this Section 2 during the period ending 180 days after the
effective date of any registration statement filed pursuant to
the Securities Act for the initial underwritten public
offering by the Company of shares of Common Stock and during
the period ending 90 days after the effective date of any
subsequent registration under the Securities Act by the
Company of shares of Common Stock or Common Stock Equivalents,
other than in connection with an employee benefit plan,
dividend reinvestment plan or merger, consolidation or other
business combination.
(d) Priority on Demand Registrations.
The registration statement filed pursuant to the Demand
Registration Request of the Requesting Holders may, subject to
the limitations set forth below, include other securities of
the Company, with respect to which registration rights have
been granted, and may include securities of the Company being
sold for the account of the Company. If a Demand Registration
is an underwritten public offering and the managing
underwriters advise the Company in writing that in their
opinion the number of Registrable Shares and other securities
requested to be included exceeds the number of Registrable
Shares and other securities which can be sold in such
offering, the Company shall include
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in such registration, prior to the inclusion of any securities
to be sold by the Company or any other securities which are
not Registrable Shares, the number of Registrable Shares
requested to be included, pro rata among the Requesting
Holders on the basis of the number of Registrable Shares owned
by such Requesting Holders.
(e) Underwriters. The managing underwriter or
underwriters for any Demand Registration shall be selected by the
holders of a majority of the Registrable Shares to be included in such
Demand Registration, which managing underwriter or underwriters shall
be reasonably acceptable to the Company.
SECTION 3. Piggyback Registration.
(a) Right to Piggyback. If at any time the
Company proposes to file a registration statement under the Securities
Act with respect to any underwritten offering of any securities of the
Company, other than a registration statement on Form S-4 or S-8 (or
any substitute form for comparable purposes that may be adopted by the
Commission) or a registration statement filed in connection with an
exchange offer or an offering of securities solely to the Company's
existing security holders (a "Piggyback Registration"), the Company
shall in each case give written notice of such proposed filing to all
holders of Registrable Shares as soon as practicable, but in no event
less than 20 days before the anticipated filing date, and shall,
subject to Section 3(b) hereof, include in such registration statement
all Registrable Shares with respect to which the Company has received
written requests for inclusion therein within 15 days after the
Company's notice is received by all such holders.
(b) Priority in Piggyback Registrations. If the
managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in a
registration exceeds the number which can be sold in such offering,
the Company shall include in such registration (i) first, the
securities the Company proposes to sell, if any, and (ii) second, the
Registrable Shares requested to be included in such registration, pro
rata among the holders of all such Registrable Shares and other
securities requested to be included on the basis of the then number of
Registrable Shares and other securities requested to be included by
each such holder.
(c) Right to Withdraw. Notwithstanding anything
to the contrary, neither the delivery of the notice by the Company nor
of the request by the holder of the Registrable Shares shall in any
way obligate the Company to file, or the holder of the Registrable
Shares to have included in, a registration statement under this
Section 3 and notwithstanding such filing, the Company may, at any
time prior to the effective date thereof, in its sole discretion,
determine not to offer the securities to which the registration
statement relates without liability to any of the holders of the
Registrable Shares, and any holder may determine not to include its
Registrable Shares therein without liability.
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(d) Selection of Underwriters. The managing
underwriter or underwriters for any Piggyback Registration shall be
selected by the Company, by action of the Board of Directors.
SECTION 4. Holdback Agreements. In the event that
Registrable Shares are registered by the Company pursuant to Section 2 or 3
hereof, the holders of any such Registrable Shares shall enter into such
agreements, including underwriting agreements and lock-up agreements, as the
managing underwriter of any offering registered under the Securities Act shall
reasonably request (collectively, "Holdback Agreements"); provided, however,
that (i) with respect to an initial public offering of shares of Common Stock,
such Holdback Agreements shall not exceed a period of 14 calendar days prior
to, and 180 calendar days after, the effective date of such registration, and
(ii) with respect to any subsequent registrations, such Holdback Agreements
shall not exceed a period of 14 calendar days prior to, and 120 calendar days
after, the effective date of such registration.
SECTION 5. Registration Procedures. Whenever the holders
of Registrable Shares have requested that any Registrable Shares be registered
pursuant to this Agreement, the Company shall use its best efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Shares and use
its best efforts to cause such registration statement to become and
remain effective for such period as may be reasonably necessary to
effect the sale of such securities, in any case not to exceed six
months;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of not more than
six months and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such registration statement;
(c) furnish, without charge, to each Selling
Holder and the underwriters of the securities being registered such
number of copies of such registration statement, each amendment and
supplement thereto, in each case including all exhibits, the
prospectus included in such registration statement, including each
preliminary prospectus, and such other documents as each such Selling
Holder or underwriters may reasonably request in order to facilitate
the disposition of the Registrable Shares owned by each such Selling
Holder or the sale of such securities by such underwriters;
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(d) use its best efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws
of such jurisdictions as each Selling Holder shall reasonably request
and do any and all other acts and things which may be reasonably
necessary or advisable to enable each such Selling Holder to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by such Selling Holder, provided, however, that the
Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to
qualify but for this Section 5(d), (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction;
(e) (i) cause all such Registrable Shares covered
by such registration statement to be listed on the principal
securities exchange on which similar securities issued by the Company
are then listed, if any, if the listing of such Registrable Shares is
then permitted under the rules of such exchange, or (ii) if no similar
securities are then so listed, cause all such Registrable Shares to be
listed on a national securities exchange or, failing that, secure
designation of all such Registrable Shares as a Nasdaq Stock Market
"national market system security" within the meaning of Rule 1lAa2-1
of the Commission or, failing that, secure Nasdaq Stock Market
authorization for such shares and, without limiting the generality of
the foregoing, take all actions that may be required by the Company as
the issuer of such Registrable Shares in order to facilitate the
managing underwriter's arranging for the registration of at least two
market makers as such with respect to such shares with the National
Association of Securities Dealers, Inc.;
(f) provide and cause to be maintained a transfer
agent and registrar for all such Registrable Shares not later than the
effective date of such registration statement;
(g) enter into such customary agreements,
including underwriting agreements in customary form, and take all such
other actions as the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Shares;
(h) upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably
available for inspection by the Selling Holders, any underwriter
participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any
such Selling Holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
Selling Holder, underwriter, attorney, accountant or agent in
connection with such registration statement;
(i) promptly notify each Selling Holder, (i) of
the time when the registration statement, any pre-effective amendment,
the prospectus or any prospectus
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supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the
registration statement or any post-effective amendment, when the same
has become effective and (ii) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
any Registrable Shares for sale under the securities or blue sky laws
of any jurisdiction or the initiation of any proceeding for such
purpose;
(j) notify each Selling Holder of any requests by
the Commission for the amending or supplementing of such registration
statement or prospectus or for additional information;
(k) prepare and file with the Commission,
promptly upon the request of any Selling Holder, any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel selected by the holders of a majority of the
Registrable Shares being registered, is required under the Securities
Act or the rules and regulations thereunder in connection with the
distribution of Registrable Shares by such Selling Holder;
(l) prepare and promptly file with the Commission
and promptly notify each Selling Holder of the filing of such
amendment or supplement to such registration statement or prospectus
as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred as
the result of which any such prospectus as then in effect would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading;
(m) advise each Selling Holder, promptly after
the Company shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceeding for such purpose and promptly use all
reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued;
(n) provide notice within a reasonable amount of
time prior to the filing of any registration statement or prospectus
of any amendment or supplement to such registration statement or
prospectus, furnish a copy thereof to each Selling Holder and refrain
from filing any such registration statement, prospectus, amendment or
supplement to which counsel selected by the holders of a majority of
the Registrable Shares being registered shall have reasonably objected
on the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act or
the rules and regulations thereunder, unless, in the case of an
amendment or supplement, the Company
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reasonably believes the filing of such amendment or supplement is
reasonably necessary to protect the Company from any liabilities under
any applicable federal or state law;
(o) at the request of any Selling Holder in
connection with an underwritten offering, furnish on the date or dates
provided for in the underwriting agreement: (i) an opinion of counsel,
addressed to the underwriters and the Selling Holders, covering such
matters as such underwriters may reasonably request, including,
without limiting the generality of the foregoing, opinions to the
effect that (A) such registration statement has become effective under
the Securities Act; (B) to the best of such counsel's knowledge no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act; (C) the registration statement,
the prospectus, and each amendment or supplement thereto comply as to
form in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission
thereunder except that such counsel need express no opinion as to
financial statements or other financial or statistical data contained
therein; and (ii) a "cold comfort" letter or letters from the
independent certified public accountants of the Company addressed to
the underwriters and the Selling Holders, covering such matters as
such underwriters may reasonably request, in which letters such
accountants shall state, without limiting the generality of the
foregoing, that they are independent certified public accountants
within the meaning of the Securities Act and that in the opinion of
such accountants the financial statements and other financial data of
the Company included in the registration statement, the prospectus, or
any amendment or supplement thereto comply in all material respects
with the applicable accounting requirements of the Securities Act;
(p) deliver promptly to each Holder participating
in the offering and each underwriter, if any, copies of all
correspondence between the Commission and the Company, its counsel or
auditors and all memoranda relating to discussions with the Commission
or its staff with respect to the registration statement, other than
those portions of any such correspondence and memoranda which contain
information subject to attorney-client privilege with respect to the
Company;
(q) provide a CUSIP number for all Registrable
Shares, not later than the effective date of the registration
statement;
(r) make reasonably available its employees and
personnel and otherwise provide reasonable assistance to the
underwriters, taking into account the needs of the Company's business
and the requirements of the marketing process, in the marketing of
Registrable Shares in any underwritten offering;
(s) promptly prior to the filing of any document
which is to be incorporated by reference into the registration
statement or the prospectus, after the initial
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filing of such registration statement, provide copies of such document
to counsel to the Selling Holders of Registrable Shares and to the
managing underwriter, if any, and make the Company's representatives
reasonably available for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for
such Selling Holders or underwriters may reasonably request;
(t) furnish to each Selling Holder and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits, including those
incorporated by reference;
(u) comply with all applicable rules and
regulations of the Commission, and make generally available to its
security holders, as soon as reasonably practicable after the
effective date of the registration statement, and in any event within
16 months thereafter, an earnings statement (which need not be
audited) covering the period of at least twelve consecutive months
beginning with the first day of the Company's first calendar quarter
after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder; and
(v) take all such other commercially reasonable
actions as are necessary or advisable in order to expedite or
facilitate the disposition of such Registrable Shares.
SECTION 6. Registration Expenses. Except as otherwise
provided herein, all expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, including a blue sky survey and the related fees and expenses of counsel,
printing expenses, messenger and delivery expenses, and fees and disbursements
of counsel for the Company and its independent certified public accountants,
fees and disbursements of one counsel for the Selling Holders, selected by the
Selling Holder initiating a registration under Section 2 hereof and selected by
the holders of a majority of the Registrable Shares included in a registration
under Section 3 hereof, and other Persons (including experts) retained by the
Company, and all other fees and disbursements of underwriters customarily paid
by issuers or sellers of securities (all such expenses being herein called
"Registration Expenses"), shall be borne by the Company. In addition, the
Company shall pay its internal expenses, including without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties, the expense of any annual audit or quarterly review, the
expense of any liability insurance obtained by the Company and the expenses and
fees for listing the securities so registered on each securities exchange on
which any shares of common stock are then listed or on the Nasdaq Stock Market.
Registration Expenses shall not include (a) the fees and expenses of more than
one counsel for the Selling Holders, or (b) any underwriting discounts,
commissions or similar charges attributable to the sale of Registrable Shares
included in such registration.
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SECTION 7. Indemnification and Contribution.
(a) Indemnification by the Company. The Company
shall indemnify and hold harmless to the fullest extent permitted by
law each Selling Holder, its officers, directors, fiduciaries,
stockholders, partners (and the directors, officers, employees and
stockholders thereof) and agents and each person, if any, who controls
such Selling Holder within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act (collectively, the "Selling
Indemnified Parties" and, individually, a "Selling Indemnified
Party"), from and against any and all losses, claims, damages, whether
in contract, tort or otherwise, liabilities, expenses, actions and
proceedings, whether commenced or threatened, in respect thereof,
including reasonable costs of investigation, counsel fees and amounts
paid in settlement, whatsoever (as incurred or suffered) arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or preliminary,
final or summary prospectus relating to the Registrable Shares or in
any amendment or supplement thereto, or arising out of or based upon
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any
such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such Selling Holder
or on such Selling Holder's behalf expressly for use therein. The
Company shall also indemnify any underwriters of the Registrable
Shares, their officers, partners and directors and each person who
controls such underwriters on substantially the same basis as that of
the indemnification of the Selling Indemnified Parties provided in
this Section 7 or to provide such other indemnification customarily
obtained by underwriters at the time of offering.
(b) Conduct of Indemnification Proceedings. If
any action or proceeding, including any governmental investigation,
shall be brought or asserted against any Selling Indemnified Party in
respect of which indemnity may be sought from the Company, the Company
shall, at its expense, assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Selling
Indemnified Party. Such Selling Indemnified Party shall have the right
to employ separate counsel in any such action and to participate in
the defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Selling Indemnified Party unless (i) the
Company has agreed to pay such fees and expenses, (ii) the Company
fails to diligently defend the action or proceeding within 20 days
after receiving notice from the Selling Indemnified Party that the
Selling Indemnified Party believes the Company has so failed or (iii)
the named parties to any such action or proceeding, including any
impleaded parties, include both such Selling Indemnified Party and the
Company, and such Selling Indemnified Party shall have been advised by
counsel that there may be a conflict of interest between any of the
parties, or that representation of the Selling Indemnified Party and
the Company is otherwise inappropriate under applicable standards of
professional conduct, or one or more legal defenses are available to
such Selling
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Indemnified Party which are different from or additional to those
available to the Company; in which case, if such Selling Indemnified
Party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not
have the right to assume the defense of such action or proceeding on
behalf of such Selling Indemnified Party; it being understood,
however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such Selling
Indemnified Parties, which firm shall be designated in writing by a
majority of the Selling Indemnified Parties. The Company shall not be
liable for any settlement of any such action or proceeding effected
without the Company's written consent, but if settled with its written
consent, which consent shall not be unreasonably withheld or delayed,
or if there be a final judgment no longer subject to appeal for the
plaintiff in any such action or proceeding, the Company agrees to
indemnify and hold harmless such Selling Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason
of such settlement or judgment.
(c) Indemnification by Holders of Registrable
Shares. Each Selling Holder shall severally, but not jointly,
indemnify and hold harmless the Company, its directors, officers,
fiduciaries, stockholders and agents and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Act or Section 20 of the Securities Exchange Act (collectively, the
"Issuer Indemnified Parties" and, individually, a "Issuer Indemnified
Party" and, together with a Selling Indemnified Party an "Indemnified
Party"), to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with respect to information
furnished in writing by such Selling Holder or on such Selling
Holder's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Shares, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action
or proceeding shall be brought against an Issuer Indemnified Party, in
respect of which indemnity may be sought against such Selling Holder,
such Selling Holder shall have the rights and duties given to the
Company, and the Issuer Indemnified Parties shall have the rights and
duties given to such Selling Holder, by the preceding Section 7(b)
hereof. Each Selling Holder shall also severally, but not jointly,
indemnify and hold harmless underwriters of the Registrable Shares,
their officers, directors, fiduciaries, stockholders and agents and
each person who controls such underwriters on substantially the same
basis as that of the indemnification of the Company provided in this
Section 7.
(d) Contribution. If the indemnification provided
for in this Section 7 is unavailable to any Indemnified Party in
respect of any losses, claims, damages, liabilities, expenses, actions
or proceedings referred to herein, then each such indemnifying party,
in lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages, liabilities, expenses,
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actions and proceedings (i) as between the Issuer Indemnified Parties
and the Selling Indemnified Parties on the one hand and the
underwriters on the other, in such proportion as is appropriate to
reflect the relative benefits received by the Issuer Indemnified
Parties and the Selling Indemnified Parties on the one hand and the
underwriters on the other from the offering of the Registrable Shares,
or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Issuer Indemnified Parties
and the Selling Indemnified Parties on the one hand and of the
underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities,
expenses actions or proceedings, as well as any other relevant
equitable considerations and (ii) as between the Issuer Indemnified
Parties, on the one hand, and each Selling Indemnified Party on the
other, in such proportion as is appropriate to reflect the relative
fault of the Issuer Indemnified Parties and of each Selling
Indemnified Party in connection with such statements or omissions, as
well as any other relevant equitable considerations. The relative
benefits received by the Issuer Indemnified Parties and the Selling
Indemnified Parties on the one hand and the underwriters on the other
shall be deemed to be in the same proportion as the total proceeds
from the offering, net of underwriting discounts and commissions but
before deducting expenses, received by the Issuer Indemnified Parties
and the Selling Indemnified Parties bear to the total underwriting
discounts and commissions received by the underwriters, in each case
as set forth in the table on the cover page of the prospectus. The
relative fault of the Issuer Indemnified Parties and the Selling
Indemnified Parties on the one hand and of the underwriters on the
other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Issuer Indemnified Parties and the Selling
Indemnified Parties or by the underwriters. The relative fault of the
Issuer Indemnified Parties on the one hand and of each Selling
Indemnified Party on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders hereby agree that
it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation, even if the
underwriters were treated as one entity for such purpose, or by any
other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages, liabilities, expenses, actions
or proceedings referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7(d), no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
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Registrable Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission,
and no Selling Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Shares of such Selling Holder were offered to the public exceeds the
amount of any damages which such Selling Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No Person guilty of fraudulent
misrepresentation, within the meaning of Section 11(f) of the
Securities Act, shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. Each Selling
Holder's obligation to contribute is several in the proportion that
the proceeds of the offering received by such Selling Holder bears to
the total proceeds of the offering, and not joint.
(e) Settlement or Compromise. No indemnifying
party shall without the written consent of the Indemnified Party,
effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought
hereunder, whether or not the Indemnified Party is an actual or
potential party to such action or claim, unless such settlement,
compromise or judgment (A) includes an unconditional release of the
Indemnified Party from all liability arising out of such action or
claim and (B) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
Indemnified Party.
(f) Rights not Exclusive. The indemnity
agreements contained in this Section 7 shall be in addition to any
other rights to indemnification or contribution which any Indemnified
Party may have pursuant to law or contract and shall remain operative
and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
SECTION 8. Compliance with Rule 144. When it is first
legally required to do so, the Company shall register a class of securities
under Section 12 of the Securities Exchange Act, and commence to file reports
under Section 13 or 15(d) of the Securities Exchange Act. Thereafter at the
request of any holder who proposes to sell securities in compliance with Rule
144 promulgated by the Commission under the Securities Act, the Company shall
(i) forthwith furnish to such holder a written statement of compliance with the
filing requirements of the Commission as set forth in Rule 144 as such rule may
be amended from time to time and (ii) timely file and make available to the
public and such holders such reports and other information as will enable the
holders to make sales pursuant to Rule 144.
SECTION 9. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is underwritten
unless such Person (a) agrees to sell
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such Person's securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements, (b) provides all such information as is reasonably required to
effect such registration and completes and executes all undertakings,
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements or applicable laws, and (c) complies with all other reasonable
requests of the managing underwriter and with the Company and complies with all
other reasonable requests related to such registration.
SECTION 10. Remedies. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
SECTION 11. Amendments and Waivers. Except as otherwise
expressly provided herein, the provisions of this Agreement including, but not
limited to, notice provisions may be amended or waived at any time only by the
written agreement of the Company and the holders of a majority of the
Registrable Shares. Any waiver, permit, consent or approval of any kind or
character on the part of any such holders of any provision or condition of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in writing.
SECTION 12. Successors and Assigns. Except as otherwise
expressly provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not.
SECTION 13. Final Agreement. This Agreement constitutes
the final agreement of the parties hereto concerning the matters referred to
herein, and supersedes all prior agreements and understandings with respect to
the subject matter hereof.
SECTION 14. Severability. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
SECTION 15. Descriptive Headings. The descriptive
headings of this Agreement are inserted for convenience of reference only and
do not constitute a part of and shall not be utilized in interpreting this
Agreement.
SECTION 16. Notices. Any notices required or permitted
to be sent hereunder shall be delivered by hand, by telex or telecopier, or by
certified or registered mail, postage prepaid and return receipt requested, or
delivered by overnight courier service to the following addresses, or such
other addresses as shall be given by notice delivered hereunder. Notices shall
be deemed
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to have been given upon delivery, if delivered by hand, three business days
after mailing, if mailed, or one business day after delivery to the courier, if
delivered by overnight courier service, and upon receipt of an appropriate
electronic confirmation, if by telex or telecopier:
If to the holders of Registrable Shares, to the addresses set
forth on the stock record books of the Company.
If to the Company, to:
Bayard Drilling Technologies, Inc.
Suite 400E, Lakepoint Towers
0000 Xxxxxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
SECTION 17. Governing Law. The validity, meaning and
effect of this Agreement shall be determined in accordance with the laws of the
State of Delaware applicable to contracts made and to be performed in that
state.
SECTION 18. Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and such counterparts together shall constitute
one instrument. Each party shall receive a duplicate original of the
counterpart copy or copies executed by it and the Company.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
BAYARD DRILLING TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: President
------------------------------
ANADARKO DRILLING COMPANY
By: AnSon Partners Limited
Partnership, General Partner
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
--------------------------
Title: General Partner
-------------------------
ENERGY SPECTRUM PARTNERS LP
By: Energy Spectrum Capital LC,
General Partner
By: Energy Spectrum LLC, General
Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
-------------------
Title: President
------------------
CHESAPEAKE ENERGY CORPORATION
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
------------------------------
Title: Chairman and Chief Executive
Officer
-----------------------------
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X.X. XXXXXX DRILLING, INC.
By: /s/ Xxx X. Xxxxxx
--------------------------------
Name: Xxx X. Xxxxxx
------------------------------
Title: President
-----------------------------
XXXX XXXXXX ENERGY EQUIPMENT
RESOURCE, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: President
-----------------------------
GRUPO DE HERCULES, LTD.
By: /s/ Xxx X. Xxxxxx
-------------------------------
General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: President
-----------------------------
XXXXXX-XXXXXX PARTNERSHIP, LTD.
By: /s/ Xxx X. Xxxxxx
-------------------------------
General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
------------------------------
Title: President
-----------------------------
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