EXHIBIT 10.36
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement") is made as of February 9, 2001, by and between Black Warrior
Wireline Corp., a Delaware corporation (the "Company"), and St. Xxxxx Capital
Partners, L.P. (the "Purchaser").
WHEREAS, the Purchaser has acquired or may acquire from the Company,
Common Stock Purchase Warrants (collectively, the "Warrants") which may be
exercised to initially acquire up to 400,000 shares of the Company's Common
Stock (the "Shares"), par value $0.005 per share ("Common Stock"), subject to
adjustment;
WHEREAS, the Company wishes to grant the Purchaser certain registration
rights in respect of the Shares, as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Registration Rights Agreement, the following terms
shall have the meanings set forth below:
1.1 "Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
1.2 "Holder" shall mean Purchaser and any transferee of any
Warrants or holder of any Shares issued upon exercise of any Warrants.
1.3 "Registrable Securities" shall mean (i) the Shares; and (ii)
any Common Stock issued or issuable at any time or from time to time in respect
of the Shares upon a stock split, stock dividend, recapitalization or other
similar event involving the Company until such Common Stock is sold pursuant to
a Registration Statement or the exemption from registration under Rule 144(k)
(or successor Rule) under the Securities Act is available with respect to the
Shares.
1.4 The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering by the
Commission of the effectiveness of such registration statement.
1.5 "Registration Expenses" shall mean all expenses, other than
Selling Expenses (as defined below), incurred by the Company in complying with
this Registration Rights Agreement, including, without limitation, all
registration, qualification and filing fees, exchange listing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, the expense of any special audits incident to or required
by any such
registration (but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
1.6 "Securities Act" shall mean the Securities Act of 1933, 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.
1.7 "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the securities
registered by a Purchaser and, except as set forth above, all fees and
disbursements of counsel for such Purchaser.
1.8 "Underwritten Public Offering" shall mean a public offering in
which the Common Stock is offered and sold on a firm commitment basis through
one or more underwriters, all pursuant to an underwriting agreement between the
Company and such underwriters.
ARTICLE II
REGISTRATION RIGHTS
2.1 Piggyback Registration.
2.1.1 Subject to the terms hereof, if: (i) at any time or
from time to time the Company or any shareholder of the Company shall determine
to register any of its securities (except for registration statements on Form
S-8 or relating to employee benefit plans or exchange offers), either for its
own account or the account of a security holder; and (ii) the Purchaser is the
beneficial owner of any Registrable Securities; the Company will promptly give
to the Purchaser written notice thereof no less than 10 days prior to the filing
of any registration statement; and include in such registration (and any related
qualification under blue sky laws or other compliance), and in the underwriting
involved therein, if any, such Registrable Securities as Purchaser may request
in a writing delivered to the Company within 5 days after Purchaser's receipt of
Company's written notice.
2.1.2 The Purchaser may participate in any number of
registrations until all of the Registrable Securities held by such Purchaser
have been distributed pursuant to a registration.
2.1.3 If any registration statement is an Underwritten
Public Offering, the right of a Purchaser to registration pursuant to this
Section shall be conditioned upon such Purchaser's participation in such
reasonable underwriting arrangements as the Company shall make regarding the
offering, and the inclusion of Registrable Securities in the underwriting shall
be limited to the extent provided herein. The Purchaser and all other
shareholders proposing to distribute their securities through such underwriting
shall (together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section, if the
managing underwriter concludes in its reasonable judgment that the number of
shares to be registered for selling shareholders (including the Purchaser) would
materially adversely effect such offering, the number of Shares to be
registered, together with the number of shares of Common Stock or other
securities held by other shareholders proposed to be registered in such
offering, shall be reduced
on a pro rata basis based on the number of Shares proposed to be sold by the
Purchaser as compared to the number of shares proposed to be sold by all
shareholders. If a Purchaser disapproves of the terms of any such underwriting,
it may elect to withdraw therefrom by written notice to the Company and the
managing underwriter, delivered not less than ten days before the effective
date. The Registrable Securities excluded by the managing underwriter or
withdrawn from such underwriting shall be withdrawn from such registration, and
shall not be transferred in a public distribution prior to 120 days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
2.1.4 The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section prior to the
effectiveness of such registration whether or not a Purchaser has elected to
include securities in such registration.
2.2 Expenses of Registration. All Registration Expenses shall be
borne by the Company. Unless otherwise stated herein, all Selling Expenses
relating to securities registered on behalf of any Purchaser shall be borne by
such Purchaser.
2.3 Best Registration Rights. If, on or after the date of this
Registration Rights Agreement, the Company grants to any person with respect to
any security issued by the Company registration rights that provide for terms
that are in any manner more favorable to the holder of such registration rights
than the terms granted to the Purchaser (or if the Company amends or waives any
provision of any Agreement providing registration rights of others or takes any
other action whatsoever to provide for terms that are more favorable to other
holders than the terms provided to the Purchaser) then this Registration Rights
Agreement shall immediately be deemed amended to provide the Purchaser with any
(or all) of such more favorable terms as the Purchaser shall elect to include
herein.
2.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep the Purchaser advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense, the Company will:
2.4.1 Prepare and file with the Commission a registration
statement with respect to such securities and use its commercially reasonable
efforts to cause such registration statement to become and remain effective
until the distribution described in such registration statement has been
completed;
2.4.2 Furnish to each underwriter such number of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such underwriter
may reasonably request in order to facilitate the public sale of the shares by
such underwriter, and promptly furnish to each underwriter and the Purchaser
notice of any stop-order or similar notice issued by the Commission or any state
agency charged with the regulation of securities, and notice of any Nasdaq or
securities exchange listing.
2.4.3 Use its best efforts to cause the Shares to be
listed on the Nasdaq SmallCap Market and each Securities Exchange on which the
Common Stock is approved for listing.
2.5 Indemnification.
2.5.1 To the extent permitted by law, the Company will
indemnify the Purchaser, each of its officers and directors and partners, and
each person controlling the Purchaser within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, to the extent such
expenses, claims, losses, damages or liabilities arise out of or are based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any registration statement, prospectus, offering circular or other similar
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on 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, or any violation by the Company of the
Securities Act or any rule or regulation promulgated under the Securities Act
applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse Purchaser, each of
its officers and directors and partners, and each person controlling Purchaser,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action; provided, however, that the indemnity contained herein shall not apply
to amounts paid in settlement of any claim, loss, damage, liability or expense
if settlement is effected without the consent of the Company (which consent
shall not unreasonably be withheld); provided, further, that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by Purchaser, such
controlling person or such underwriter specifically for use therein.
Notwithstanding the foregoing, insofar as the foregoing indemnity relates to any
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the final prospectus filed with the Commission
pursuant to the applicable rules of the Commission or in any supplement or
addendum thereto, the indemnity agreement herein shall not inure to the benefit
of any underwriter if a copy of the final prospectus filed pursuant to such
rules, together with all supplements and addenda thereto, was not furnished to
the person or entity asserting the loss, liability, claim or damage at or prior
to the time such furnishing is required by the Securities Act.
2.5.2 To the extent permitted by law, the Purchaser will,
if securities held by such Purchaser are included in the securities as to which
such registration, qualification or compliance is being effected pursuant to
terms hereof, indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, and each other person selling the
Company's securities covered by such registration statement, each of such
person's officers and directors and each person controlling such persons within
the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or 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, or any violation by
such Purchaser of any rule or regulation promulgated under the Securities Act
applicable to such Purchaser and relating to action or inaction required of such
Purchaser in connection with any such registration, qualification or compliance,
and will reimburse the Company, such other persons, such directors, officers,
persons, underwriters or control persons for any legal or other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
specifically for use therein; provided, however, that the indemnity contained
herein shall not apply to amounts paid in settlement of any claim, loss, damage,
liability or expense if settlement is effected without the consent of such
Purchaser (which consent shall not be unreasonably withheld). Notwithstanding
the foregoing, the liability of such Purchaser under this subsection (b) shall
be limited in an amount equal to the net proceeds from the sale of the shares
sold by such Purchaser, unless such liability arises out of or is based on
willful conduct by such Purchaser. In addition, insofar as the foregoing
indemnity relates to any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) made in the preliminary prospectus but eliminated
or remedied in the amended prospectus on file with the Commission at the time
the registration statement becomes effective or in the final prospectus filed
pursuant to applicable rules of the Commission or in any supplement or addendum
thereto, the indemnity agreement herein shall not inure to the benefit of the
Company or any underwriter if a copy of the final prospectus filed pursuant to
such rules, together with all supplements and addenda thereto, was not furnished
to the person or entity asserting the loss, liability, claim or damage at or
prior to the time such furnishing is required by the Securities Act.
2.5.3 Notwithstanding the foregoing paragraphs (a) and
(b) of this Section, each party entitled to indemnification under this Section
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or as to which the
Indemnifying Party is asserting separate or different defenses, which defenses
are inconsistent with the defenses of the Indemnified Party. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each 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. No Indemnified Party shall
consent to entry of any judgment or enter into any settlement without the
consent of each Indemnifying Party.
2.5.4 If the indemnification provided for in this Section
is unavailable to an Indemnified Party in respect of any losses, claims, damages
or liabilities referred to therein, then each 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 (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and all shareholders offering
securities in the offering (the "Selling Security Holders") on the other from
the offering of the Company's securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Selling
Security Holders on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Selling Security Holders on the other shall be
the net proceeds from the offering (before deducting expenses) received by the
Company on the one hand and the Selling Security Holders on the other. The
relative fault of the Company on the one hand and the Selling Security Holders
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Selling Security Holders and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Selling Security Holders agree that
it would not be just and equitable if contribution pursuant to this Section were
based solely upon the number of entities from whom contribution was requested or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section. The amount paid or payable by
an Indemnified Party as a result of the losses, claims, damages and liabilities
referred to above in this Section shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim, subject to the provisions
hereof. Notwithstanding the provisions of this Section, no Selling Security
Holder shall be required to contribute any amount or make any other payments
under this Agreement which in the aggregate exceed the proceeds received by such
Selling Security Holder. No person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
2.6 Certain Information.
2.6.1 Purchaser agrees, with respect to any Registrable
Securities included in any registration, to furnish to the Company such
information regarding Purchaser, the Registrable Securities and the distribution
proposed by Purchaser as the Company may reasonably request in writing and as
shall be required in connection with any registration, qualification or
compliance referred to herein.
2.6.2 The failure of the Purchaser to furnish the
information requested pursuant to this Section shall not affect the obligation
of the Company to the other Selling Security Holders who furnish such
information unless, in the reasonable opinion of counsel to the Company or the
underwriters, such failure impairs or may impair the legality of the
Registration Statement or the underlying offering.
2.7 Rule 144 Reporting. With a view to making available
the benefits of certain rules and regulations of the Commission which may at any
time permit the sale of Restricted Securities (used herein as defined in Rule
144 under the Securities Act) to the public without registration, the Company
agrees to use its best lawful efforts to:
2.7.1 Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times during which the Company is subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
2.7.2 File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act (at all times during which the Company is subject to such
reporting requirements); and
2.7.3 So long as the Purchaser owns any Restricted
Securities (as defined in Rule 144 promulgated under the Securities Act), to
furnish to Purchaser forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 and with
regard to the Securities Act and the Exchange Act (at all times during which the
Company is subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company and other information in the possession of or reasonably
obtainable by the Company as the Purchaser may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Purchaser to
sell any such securities without registration.
2.8 Transferability. The rights conferred by this Registration
Rights Agreement shall be freely transferable to a recipient of Registrable
Securities.
2.9 Governing Law. This Registration Rights Agreement shall be
governed in all respects by the laws of the State of Delaware.
2.10 Entire Agreement; Amendment. This Registration Rights
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject hereof. This Registration Rights
Agreement, or any provision hereof, may be amended, waived, discharged or
terminated upon the written consent of the Company and the Purchaser.
2.11 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger
including Federal Express or similar courier service, addressed (a) if to the
Purchaser: to St. Xxxxx Capital Partners, L.P., c/o St. Xxxxx Capital Corp.,
Attention Xxxxx X. Xxxxxxxx, 000 Xxxx Xxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx,
00000 or at such other address as any Purchaser shall have furnished to the
Company in writing, or (b) if to the Company: to Black Warrior Wireline Corp.,
0000 Xxxxxxx #00 Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or at such other address as
the Company shall have furnished to the Purchaser. Each such notice or other
communication shall for all purposes of this Agreement be treated as effective
upon receipt.
2.12 Delays or Omissions. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to any party
to this Registration Rights Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Registration Rights Agreement, or any waiver on the part of any party of any
provisions or conditions of this Registration Rights Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Registration Rights Agreement or by law
or otherwise afforded to any party to this Registration Rights Agreement, shall
be cumulative and not alternative.
2.13 Counterparts. This Registration Rights Agreement may be
executed in any number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one instrument.
2.14 Severability. In the event that any provision of this
Registration Rights Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Registration Rights
Agreement shall continue in full force and effect without said provision.
2.15 Titles and Subtitles. The titles and subtitles used in this
Registration Rights Agreement are used for convenience only and are not
considered in construing or interpreting this Registration Rights Agreement.
THE COMPANY'S SIGNATURE PAGE
IN WITNESS WHEREOF, the Company has executed this Registration Rights
Agreement effective upon the date first set forth above.
BLACK WARRIOR WIRELINE CORP.
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By: Xxxxxxx X. Xxxxxxx
Title: President
PURCHASER'S SIGNATURE PAGE
IN WITNESS WHEREOF, Purchaser has signed this Registration Rights
Agreement as of the date first written above.
ST. XXXXX CAPITAL PARTNERS, L.P.
By: St. Xxxxx Capital Corp., General Partner
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By: Xxxx X. Xxxxxxxx
Title: President
